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HomeMy WebLinkAbout1988-1133.Gilbert.90-06-16~'~? ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEE$ DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS S73REET wEST, .SUITE 2~00, TORONTO, oNTARED. MSG 1Z8 . TELEPHONE~TELePHONE: (476) 326-1388 180, RUE DUNDAS Of~EST, BUREAU 2100, TORONTO (ONTARfOt. MSG IZ8 ' FAC$1MILE/T~LC/.COPIE : I4'16) 326-I396 1133/88 IN THE F~ATTER OF AN ARBITRATION Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 0LBEU (Gilbert) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer - and - BEFORE: T. Wilson Vice-Chairperson G, Nabi Member H. Knight Member FOR THE C. Flood GRIEVOR: Counsel Koskie & Minsky Barristers.& Solicitors FOR THE C. White EMPLOYER: Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: May 26, 1989 Dec~slon The grievor is a Warehouseman 4 at the Durham Warehouse. On Monday, October 17, 1988, he was relieved from duty and subsequently this was made into a 30 day suspension. He grieves against the length of that suspension and requests that this Board reduce its length. The suspension resulted from an incident while the grievor was working on the night shift. In brief outline the facts are that the grievor was seen by the security officer in the dispatch room (traffic control office) either drinking or about to drink from a bottle of Drambuie which the grievor had taken from the LCBO stock. The relevant part of the disciplinary letter stated: "After considering the facts as noted above, I find that you have violated the following basic rules and regulations of conduct on the work place: 1. You came to work admittedly under the influence of alcohol, after having drunk3ust prior to coming to work. 2. You' have taken unauthorized possession of stock, belonging to the LCBO, for the purpose of consumption by yourself at a later time during your work shift'. 3. You have left your work place without authorization and went into the. traffic control office during your work shift in order to have a drink. It is of great concern to me that you did so in disregard to the presence of two. other people. Based on the facts as established and in consideration of the concerns the Board has in enforcing reasonable and Safe conduct on the work place by its employees, please be advised that you are suspended from work without pay for thirty (30) working days, starting with your suspension on Monday, October 17, 1988.* In establishing the above suspension, two considerations were taken into account: A) Your length of service with the Board and the Board's desire to enable you to continue in your employment with the Board. B) That you will contact the Board's Employee Assistant Program Co-ordinator, Mr. Bennett (963-1890) and agree with him on, and follow through with a complete E.A.P. program. D.F. Wilcox Vice President Distribution Division Broadly speaking there'was little dispute on the facts although three factual issues remained in doubt: (1) whether the grievor actually drank from the bottle; (2) whether the grievor knew there was a truck driver present in the room at the time; and (3) who actually emptied the bottle and put it in the garbage. The real relevance of the factual issues is one of the credibility of the grievor. On the other hand the grievor admitted in cross-. examination that he had on a few other occasions taken a bottle of liquor from the employee's stock. This admission was in my view to some extent to the grievor's benefit as there Was no evidence before us that the employer was aware of this and another person in the g'rievor's position might well have believed he coqld have denied it without fear of contradiction.' In requesting this Board to reduce the penalty, .the Union 3 relied on a number of factors: the grievor's personal matrimonial problems at the time and an alleged moral ambiguity about the workplace with respect to the type of' incident. Herbert Teed is a Senior Security Officer at the Durham Warehouse. He was on a routine patrol'and decided to go to the dispatch office to. check'the windows. When he entered the dispatch office he saw the grievor with a bottle up to his' lips. He .testified: "It looked like he was having a drink." There were two other men in the room: Dave Comeau, an LCBO employee responsible for the dispatch office and a shunt driver, Ian Brown, employed by Hendrie Cartage. The grievor was standing behind Comeau and the driver was facing the grievor. As Teed walked, the grievor took the bottle, from his lids and put it in the. lower right hang'drawer of the desk where Comeau was sitting. The grievor closed the drawer, The grievor then made. some comment to Comeau and left the room. Teed then'went ouer to the desk, opened the lower right hand drawer where he saw a 750 ml bottle of Drambuie standin~ up with its cork inserted. C0meau told Teed he did not know what the grievor had put in the drawer. Teed closed the drawer. Teed then left the room to go to the receiving area to contact G. De Luca, theReceiving Department Manager. De Luca accompanied Teed back to the Dispatch Office but when they got to the desk the bottle was gone. Comeau told them he had emptied the bottle and thrown it in the garbage. Teed asked Comeau to get the empty / 4 bottle. De Luca and Teed followed him into the driver's lounge where Comeau retrieved the empty Drambuie bottle from the garbage bag on the cleaner's cart. After Teed returned to the Security Room, he wrote out a'report. De Luca then wrote back to his own office taking the empty bottle with him. He called Gilbert to come to his office. De Luca testified that Gilbert told him, "I fucked up and took a drink from the bottle." Gilbert told him he had marital problems and that that is why he had done it. Gilbert stated he had taken the bottle from inside the exam room. De Luca indicated he was sympathetic but he would have t6 report to upper management. De Luca testified that Gilbert did not show evidence of being intoxicated or under the influence. Later De Luca threw out the Drambuie bottle but then alerted management and the empty bottle was again retrieved. In cross-examination, De Luca testified that on the evening of the 13th before the shift in question began, the grievor and others were bowling with him in the company bowling league and the grievor as well as others drank some beer during that time. But the grievor to his knowledge was not drinking to excess. There would not be any discipline for drinking before coming to work unless an employee's ability to carry out his duties and responsibilities was affeCted. Comeau was given a five day suspension for his role in the incident. De Luca himself was also disciplined for throwing out the empty bottle. The Director of the Durham Warehouse is Henry M. Toran. He came into ~the warehouse on the Saturday and was informed of the incident by the Manager of Operations. He then questionned De Luca and the grievor was asked to write up his .version. The grievor prepared such a report on October 17, 1988. Toran then discussed the. matter with the Human Resources Department. There was a meeting on October 21 and it was decided to impose a 30 day suspension. Toran testified that one of the factors was that the midnight shift is voluntary and based on seniority i.e. there is an element of trust involved and the grievor was a senior employee. The explanation for Comeau's discipline was that he was considered an accessory after the fact since he knew about the bottle. Toran testified that the grievor denied drinking from the bottle but admitted he had the bottle uplifted and De Luca said the grievor had admitted to him he had been drinking from the bottle. The disciplinary letter did not refer to the grievor's drinking from the bottle because in his view it was difficult to prove. The grievor's seniority date is February 1976 and he has been at Kipling Warehouse for one and a half years'. He performs all the functions below the foreman's job and is in charge of moving goods. He had done both lead hand and group leader work. The midnight shift on which the incident occurred was a special shift set up to handle extra loads and he was'into the third week of that shift. It is a four night per week shift. De Luca was his supervisor. There was a foreman but he was unfamiliar with him, The grievor testified that while bowling that evening he had had three beers and afterwards he had another beer at a friend's house before going to work. He had his last beer about 10:00 p.m, and testified that 'when he went to work he was not under the influence of alcohol. Most of the employees on the shift were working in the receiving area and the grievor had the job of assigning people to work, insuring that proper brands and the.kight quantities were received. He was also responsible for paperwork on any broken liquor oases. This is done in order to allow the people in the examination room to salvage ~anything they can from these broken cases. As long as the excise seal on bottle is not damaged, unbroken bottles can be repackaged or if the label'is stained, resalable on discount tables. The grievor stated that a case of Drambuie was open and he took a bottle from it and proceeded to the Traffic Control Office. His intention was tO, drink from the bottle of Drambuie on the premises, His explanation at the hearing was: "I don't,know why I did it, possibly because I was under stress going through a separation. Also there is stress in the warehouse itself - quite a bit of trouble there." The grievor separated from his wife in the previous November and there were still on-going domestic problems. He told this Board that he did not intend to take the bottle home, He claims 7 at the. time he did not think of the seriousness of what he was doing. When he got to the Traffic Control Office he c~ncealed the bottle in the desk, "Because I knew I should not be doing it." Comeau was not in the office at the time. The Hrievor then proceeded to the shipping-docks and he. then saw Comeau return to the Traffic Control Office. The Hrievor then went to that office, took the bottle from the desk drawer and remove~ the toD. He testified that he believes it was already open. He raised the bottle to his lips and Herb Teed appeared at the door of the office just as he Was about to take a drink. He then put the bottle back in the desk drawer and left. When Teed left, the grievor returned to the office, took the bottle from the desk drawer, went to the driver' lounge adjacent to the Traffic Control Office and emptied the'bottle in the $ink'and then put the empty bottle in.the garbage container. He then went back to work in the receiving area. when De Luca called the grievor to his office and asked what · happened, he told him he had screwed up. In explanation he said, "I don't know why - probably because I was drinking before work." The grievor ~estified that he told De Luca that he had not drunk from the bottle but admitted that he had intended to take a drink. With respect to the disciplinary meeting on September 2t,~ the grievor testified that De Luca said that the grievor had admitted to taking a drink. The grievor also denies that at the meeting at the time of the incident that he had told De Luca about his 8 separation. He sa/d that he had told De Luca about that several weeks before. The grievor did subsequently contact EAP and was told that if he ran into any further problems to contact them.. He stated that he realizes now that it was wrong what he did. His own Counsel asked him if he recognized what he did as theft. He replied no he looked on that as removing it from the premises. Because of the amount of breakage and the number of bottles handled he got to think that one bottle was insignificant, but no he would not do it again. The grievor said that now there is not as much drinking at the warehouse as there was but there is still a lot of stress: broken marriages, fights, a stabbing and a lot of WCB cases. However he did not believe that the warehOUse stress had. anything directy to do with the incident. He says he has been straight forward with the LCBO about the incident and admitted he was wrong. The grievor admitted in cross-examinationthat because there are fewer people on the night shift, there is less supervision and more trust in the employees. He was not blaming the stress in the warehouse.for his offence. Counsel for the employer argued that the length of the suspension was not excessive. He submitted that normally he. Would in such circumstances have been upholding a discharge. The grievor was on a voluntary shift where there was less 'supervision and the LCBO is obviously acutely concerned about theft of stock. Also in 9 his view the employer already gave recognition to his long term' employment' and the effect of his marital problems by giving him only a suspension. Counsel for the union on the other hand disagreed that theft is any longer considered prima facie grounds for dismissal. Furthermore, he submitted that the employer had considered that the grievor lied about whether he actually drank. The basis for this position is the following paragraph in the discipline letter: "I have reviewed your statements and compared them with the statements made by your manager, the security officer and your own written statement to Mr. Toran. I find serious discrepancies, especially in accepting your statement of not having drunk out of the bottle in the traffic-control office. This contradicts your own admittance of having removed a bottle of Drambuie out of a case and taken it into the traffic control office in order to have a drink." Furthermore, he submitted that management itself showed uncertainty in deciding what to do. Even .the grievor's own testimony about the difference between taking the bottle home and consuming on site reflected the moral ambiguity of the work place. His own boss did not even send the grievor home at the time of the incident. The employer furthermore did not rely on two of the grounds in its disciplinary letter: leaving the work place and "under the influence". In another case [the "Acton incident"] the employee 10 in question was given only a three day suspension for being intoxicated on the job. There are a number of points that Ineed to deal with immediately: (1) This Board does need to exercise its own judgment under the CECB Act s. ~ . It is not a matter of reviewing the employer's decision for reasonability or good faith. (2) I would be less than candid if I did not acknowledge that this area shows the hallmarks of its origins, namely that in the earlier arbitration cases, theft was viewed as almost an automatic grounds for dismissal. It can no longer be viewed even as necessarily prima facie grounds for dismissal. Certainly on the facts and circumstances in this case, dismissal would have'been excessive and I would without hesitation have substituted discipline that was just and reasonable in all the circumstances. (3) So many.of such cases have come to arbitration boards as dismissals and frequently substantially long time'periods have elapsed since the dismissals. One can only speculate as to the ~xtent to which suspensions of six or eight months were in reality caused by this delay and.the reluctance of'arbitration boards to reinstate with any compensation where the grievor committed a theft. In my view there appears as a result to 'be' some distortion in this area. Both Counsel produced many such cases where compensation was denied and the suspensions were indeed lengthy. (4) The value of items taken has also plagued this area Of arbitration. Some case law has indicated that cases involving goods of nominal value especially where the 11 employer has shown an ambiguous attitude toward it (see the decal case for example) has been treated differ'ently. Furthermore, systematic or planned theft amounting to or bordering on looting has on the other hand been considered to 3ustify the ultimate penalty. Spontaneous-pilferinghas not in my view been treated as being as serious. And common sense suggests that that distinction is justified. Every area of discipline requires judgment and not the simple application of rigid rules. Mr. Flood for the union did produce an arbitration award in the "theft" area where the penalty was reduced from 30 days to five days; that award· is Ford Motor Co. of Canada Ltd.. and U.A.W., Loc 1520 (1973), 3 LAC (2d) 166 (J.F.W. Weatherill). This is the 'famous decals case. The decals were normally used as decoration on one of the Ford models. Someone accidently dropped several, and the grievor retrieved them and put them on his own car. Although the decals were not at that time available for sale to the public (i.e. apart from being, attached to the employer's models) the grievor apparently did not think of the appropriation of the decals' for his own use as being wrong. He displayed them openly on his own car when in the company parking lot. Moreover, other employees were carrying them· on their lunch buckets into the plant. Mr. Weatherill distinguished an earlier decision, Hruska, where an employee's 31 day suspension for stealing two rolls of toilet paper was upheld because in that case the grievor attempted to conceal what was even in his own mind 3ust plain theft. At page 168 he writes: "In the instant case, as I have noted, it was not clear to the grievor that what he was doing was wrong. While, as I have also said, he was mistaken in this, it was not as clearly wrong, and not in the same way a direct blow to the employer-employee relationship and to the continuing likelihood of loyal service by the employee, as in the other cases." I point out at this point that the grievor, in our case is in a weaker position ~han the grievor inthe Ford case. Although the grievor in our case acted spontaneously as did the grievor in the Ford case, the grievor in our case really did know that it was wrong to take the bottle of Drambuie. With respect to the ambiguity alleged in management's mind, there is indeed some suggestion in this evidence that some management people (more at the 3unior level of management) were uncertain how seriously t© treat the matter and even senior management seemed very slow.in deciding how lengthy to make the suspension. But this does not 'determine the issue. The evidence did not actually show that management has.not been disciplining for theft. At the same time, the risk from pilfering clearly is a serious issue for the LCBO. While a bottle of. liquor cannot be considered to be of only "nominal" value its value is clearly within the range of pilfering. The issue of whether the grievor actually drank or was just about to drink has muddied the waters and been allowed to escalate into a credibility issue. In my opinion both parties have allowed themselves to be drawn into essentially a side issue.' Clearly if 13 the griever had been caught drinking his ow__~n liquor on the 3ob only a short suspension could have been sustained. And in any event the griever has acknowledged that he intended to drink on the premises and would have done so but for Teed's sudden rappearance at the door. That is no. credit to the griever, but for the sake of resolving this factual issue, I do accept the griever's testimony that he was caught before he could actually swallow any of the Drambuie. In conclusion this Board needs to balance the seriousness of an offence of theft against the griever's seniority and personal problems, his basic truthfulness in light of the fact that he was essentially caught openly in the act of attempting to drink the stolen liquor and his own acknowledgment of wrongdoing as against his position of responsibility and trust on the night shift. Taking all these factors into consideration, I find the suspension of 30 days not excessive and accordingly dismiss the grievance.' Dated-this ~6th day of June, 1990 G. Nabi Member H. Knigh~ Member i~' ' ~IST OF AUTHORITIES Re LCBO and OLBEU (Hill), June 5, 1987 (Draper) GSB 54/86 Re LCBO and 0LBEU (Vigneaux), November 18, 1981 (Draper) GSB 40/81 Re Canadian Broadcasting Corporation, (1979) 23 LAC (2d) 227 (Arthurs) Re LCBO and OLBEU (Splonick), May 26, 1977 (Beatty) GSB 31/77 Re Air Canada, (1978), 18 LAC (2d) 400 (Swan) Re General Aviation, (1980) 25 LAC (2d) 54 (Prichard) Re LCBO and 0L~EU (Wells), March 26, 1982 (Verity) GSB 2/82 Re LCBO and OBLEU (Blackmore), August 30 1984 (Draper) GSB 315A/84 Re Northwood Pulp & Timber Ltd., (1974) 7 LAC 241 Re United Automobile Workers, Local 200, (1978) 22 LAC 34 Re Ford Motor Co. of Canada Ltd., (1973) 3 LAC (2d) 166