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HomeMy WebLinkAbout1990-0576.Erhardt.92-07-28 > - ,~ ~ .--- ONTARIO EMPLOYES DE LA COURONN£ I 'f CROWN EMPLOYEES DEL 'ONTA RIO 1111 GRIEVANCE COMMISSION DE . I SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS ·1 . r80 DUNDAS STREET WEST, SUiTf= 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE: (~16) 326-1388 lBO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO]. M5G IZB FACSIf,¡tILE1rtLtcOPlE: (~161 326- 1396 576/90 IN TBB MATTER OP AN ARBITRATION Under THJ!l CROWH BKPLOYBBS COLLBCTIVB BARGAI1UNG ACT Before TBB GIUBVANCB SBTTLEMENT BOARD . BETWEEN OPSEU (Erhardt) Grievor - an4 - The Crown in Right of ontario I (Niagara Parks Commission) Bmployer -- <-~. .~ BEFORB: N. Dissanayake Vice-Chairperson E. Seymour Member D. Montrose Member FOR TlIB B. Rutherford GRIEVOR Counsel Gowling, strathy & Henderson Barristers & solicitors FOR THE S. Gleave' EMPIDYER Counsel Hicks, Morley, Hamilton, stewart, Storie Barristers & Solicitors BEARING February 7, 21, 22, 1991 July 29, 30, 1991 - ~ '" 2 DECISION The grievor, Mr. Christopher Erhardt, commenced working for the employer, Niagara Parks Commission as a seasonal employee in 1978. With the exception of the 1981 season, he worked for the employer each season up to and including the 1989 season. Between 1978 and 1985, he worked at various sites of the employer in different positions. From the 1985 season, until the e~d of the 1988 season, he was employed at the Whirlpool Golf Course as a golf attendant. For the 1989 I season, he was promoted to the position of shift supervisor I at the same golf course. I I This grievance concerns the failure of the employer to . recall the grievor for the 1990 season. The grievance dated March Eí, 1990 reads "I grieve that I .have not been recalled because of accusations". The settlement desired is " . . . reinstatement to my former position with reimbursement of any and all monies, benefits and seniority lost and that the incident be $tricken from my record." Following a preliminary award of this Board issued on I I January 4, 1991, this grievance was argued as a recall case under article 6.01, which reads I Article 6 - JOB SECURITY . 6.01 Where the qualifications are relatively equal, reasonable effort will be made to layoff and recall employees to their · -~ .. 'i ~ 3 positions on the basis of seniority within a work unit. Mr. Neil Reaker, the .incumbent employee who was hired for the 1990 season in pr.eference over the grievor, was providecl due' notice of this proceeding. He attended the hearing as an observer, .but chose not to take active participation as a party when invited by the Board to do so. He did not testify on his own behalf, nor was he called by either of the other parties. At the commencement of the hearing ·the parties agreed that the Board should determine the issue of liability, that is whether the employer contravened article 6.01 by failing to recall the grievor for the 1990 .season, and if liability is found, refer the matter back to the parties to- negotiate an appropriate remedy, and remain seized. I It is common ground that the grievor had over 7 years of I seniority at the Whirlpool Golf Course, while Mr. Reaker was hired from outside, and had no seniority at all. It is also agreed that under article 6.01 the test is one of relative equality. In other words, if the Board concludes that the grievor's qualifications were relatively equal to those of Mr. Reaker, he should have been recalled as the employee with greater seniority. , -. - , 4 The evidence indicates that the qrievor has had a satisfactory work record with the employer over the period of employment with this employer upto 1989. This is evidence by the promotion he obtained as Shift Supervisor, for the 1989 season. At the end of the 1989 season a formal performance appraisal was conducted on him. That appraisal was a satisfactory one. The evidence indicates that it was the I practice of the supervisor, if satisfied with the employee's I performance} during the season, to ask at the appraisal I whether the employee was interested in returning for the next I season. On this occasion the grievor was asked that and he I indicated his interest in returning. Accordingly, the I supervisor checked a box on the appraisal form indicating I urecommended for rehire". The grievor was asked to contact the Employer sometime in March 1990. It is clear that at the end of the 1989 season, both the grievor and the employer anticipated that the grievor would be recalled to his shift supervisor position for the 1990 season. However, when the grievor contacted the employer in March 1990 about returning for the 1990 season, he was advised that he will not be recalled. That decision I ultimately led to the filing of this grievance. I -.---- -. .. -¡ 5 A substantial volume of evidence was presented to the Board during 6 heåring days. We do not ihtend to review that evidence in any detail. There were a number of conflicts between the evidence of the grievor and the testimony of Mr. Bob McI 1 veen , the Assistant to the General Manager of the Niagara Parks Commission. Where there are conflicts we have preferred the evidence of the grievor, who we felt testified in a straight forward and consistent manner. On the contrary, Mr. McIlveen's evidence is replete with inconsistencies, both internal inconsistencies in; his own answers and inconsistencies with the testimony of other witnesses called by the employer. Moreover, on crucial issues, such as what factors were considered in the decision not to recall, his evidence was extremely vague, indicating. either an inability to recall or deliberate elusiveness. On the basis of all of the evidence, it is clear that in the period 1988 to early 1989, Whirlpool Golf Course was beset by serious problems. These problems related to favouritism and rudeness by its employees and a general lack of any order. It is equally clear that the management was extremely lax and employees were permitted to function as they wished. One of the results was the practice of allowing free golf. It was common knowledge at the time that employees were allowing persons to golf free of charge contrary to the rules. The evidence indicates that in June ... ..... ., .. ~ 6 1989, Mr. McIlveen promulgated and posted a new set of rules relating to f~ee golf privileges at the Whirlpool Golf Course and also implemented new admission procedures for clients. Apparently, the new rules and policies did not have the intended effect of eradicating the free golf problem. In examination in chief Mr. McIlveen was askèd by his own counsel whether in 1990 prior to the recall of employees, he had heard rumours about free golf continuing at the course. Mr. McIlveen went on to describe a number of incidents. He testified that in January or February 1990 he was informed by the accounting department that a man had paid in a cheque for $ 100.00 because he had felt guilty after having played golf at the Whirlpool course without paying. Mr. McIlveen testified that when he brought this incident to the attention of Mr. Larry . Gibson, Manager of Golfinq Operations, Mr. Gibson informed him that he had heard rumours also that free golf is being allowed at the Whirlpool course. When Mr. McIlveen was asked if Mr. Gibson informed him anything about the grievor, he testified that Mr. Gibson told him that the qrievor's brother-in-law, Mr. Chuck Waters, had once told him that he can get on at the Whirlpool course without paying. Mr. McIlveen was then next asked what was åone about the man I who paid the $ 100.00. He responded that the man refused to I provide any information about how he managed to play golf without paying and that Mr. Gibson "confronted Mr. Erhardt". ." - . I - . . 7 When asked "Why Mr. Erhardt" , Mr. McIlveen's response was liThe people on cash wishing to return for 1990 were Clark, Giajnorio and Erhardt. Giajnorio was eliminated. Mr. Gibson had decided to transfer Clark to the Par 3 course. So the only person key was Erhardt". While the employer clai.s that upon being confronted the grievor made a comment which gave rise to an inference of an admission of guilt;, we are required by law to ignore that evidence, because it was not put to the grievor while he was testifying. If the employer claims that the grievor madeJan admission of guilt, it was incumbent on counsel to put that to the grievor while he was i I ,testifying and to permi t him to. respond to the. allegation. I This was not done. In March 1990, the· grievor made two visits to Mr. McIlveen inquiring about his recall. On the second occasion on March 23, 1990, Mr. McIlveen asked the grievorwhether he allowed friends or relatives to play free golf. The grievor answered in the negative and suggested that Mr. McIlveen talk to Mr. Clark if he had any doubts. Mr. Ellery Clark, according to the employer is a management employee. When Mr.. McIlveen asked Mr. Clark whether he was aware of any instances where the grievor had allowed free golf, Mr. Clark informed him that one evening in June 1989, he found the grievor's cousin and the cousin's wife golfing without tickets and that he asked them to leave. -, - , 8 On March 28 he advised the grievor that he had received information that the grievor had allowed some people to play golf free and asked him if it was true. The grievor did not respond to the question, but wanted Mr. McIlv~en to "give me some names II . The next day Mr. McIlveen phoned the grievor again and informed him that the people concerned were his cous in Mr . Jim Antonio and his wife April. The grievor's response was a simple "no comment". Despite several attempts by Mr. McIlveen to get the grievor to either agree or deny, he refused to comment either way. According to Mr. McIlveen it was following this "no comment" stance taken by the grievor that the decision was made not to recall him to his former position of shift supervisor at the Whirlpool Golf Course. During examination-in-chief, employer counsel asked Mr. McIlveen what factors were considered in deciding not to recall the grievor as shift supervisor. His response was, "Mr. Gibson's concern about what the grievor's brother-in-law had told him, the direct evidence from the Antonios, but my major concern was the lack of honesty when I confronted him. I didn't see any remorse, no offer of restitution. His "no comment" position made me wonder if I could trust him. He never said I made a mistake, I won't do it again". During cross-examination Mr. McIlveen was ask~d if he relied on any ·' - ; \ . , .. .. 9 incidents of free golf prior to the new rules being established in June 1989. His answer was, "The decision to not recall Mr. Erhardt was primarily because of the lack of· an answer. He stonewalled me with a "no comment" position. I was concerned with the free golf incidents also, but because of his refusal to comment I felt I was hand-cuffed". Later on Mr. McIlveen testified that he relied on "everything" in making the decision. When asked what he meant by "everythingll he said that he relied on the suspicior1s about Chuc~ Waters and the "concrete evidence" about the Antonios. Later on in cross-examination, Mr. McIlveen was asked if he relied on the returning of the $ 100.00. His response was "My suspicion was about that not satisfied. So I guess that was part of everything. I am trying to think. When I told him he won't be coming back was after he said "no comment". I don't think it was in my mind at the time. No it wasn't. sorry I am so vague". After the griever had filed the instant grievance, Mr. McIlveen called the grievor several times and suggested that he was getting bad advice and urged him to drop his grievance. During one of the conversations, in late April, Mr. McIlveen informed the gri,.evor that he was willing to recall him, but at a lower-rated position as a cashier at a parking lot. The grievor declined, but informed that he I would accept a field position in the golf course. Mr. r .- , .. .- " '- . . 10 McIlveen replied that such a job carried a rate higher than the shift supervisor position which the grievor had, and that he did not deserve such a position. The step one grievance meeting was attended by the . the chief union steward and Mr. McIlveen. The grl.evor, grievor's position at this meeting was again a "no comment". At the step 2 grievance meeting, the General Manager's designee, Mr. Nick Murphy, asked the grievor if he allowed his cousin an4 wife to play golf free, and for the first time the grievor admitted that he did. By letter dated May 14, 1990, Mr. Murphy, confirmed that the grievor wi~l not be recalled to the Senior supervisor position. However, the letter contained the following paragraph: 11... At the same time, I do recognize that up until now the employment files show you have a good work record at- the Golf Course. Accordingly, I have recommended that you should be allowed to return to the Golf course as a Golf Shop Attendant at the Golf Shop Attendant pay rate." It is common ground that the attendant position carried a lesser pay rate than the Shift Supervisor position. At a subsequent meeting, Mr. McIlv~en suggest~d to the grievor that he accept the attendant position "without prejudicell. The grievor testified that he understood that to mean that he could accept the attendant position and still continue with his grievance. The grievor consulted Mr. Bill Burns the chief I I _. I - 1'- ~. 11 union steward and rejected the offer to be recalled to the attendant position. Instead he pointed out to Mr. McIlveen that other employees also allowed free golf, and specifically mentioned that Mr. Clark and Mr. Giajnoro had done so. He urged that Mr. McIlveen convene a general meeting of the employees to discuss the practice of free golf. The result . was that the grievor was not recalled for the. 1990 season in any position, and his grieva.nce proceeded· to arbitration before this Board. As already noted the incumbent Mr. Reaker did not testify. However, Mr. Gibson, who made the decision to hire him testified about Mr. Reaker's qualifications for the job. In the job application· form Mr. Reaker did not set out any experience related· to working. in a golf course. However, Mr. Gibson testified that he had personal knowledge about Mr. Reaker. Before joining the Niagara Parks Commission, Mr. Gibson was the Manager of the International Country Club in Stevensville. He testified that between 1980 and 1989 Mr. Reaker had worked under him on a part-time basis, assisting him in all aspects of the operation. As he put it Mr. Reaker "did a little bit of everything, which means he had to be a starter, marshall in the golf course, serve in the restaurant and cook as well". During examination-in-chief, Mr. Gibson was asked "Why did you hire Mr. Reaker - what qualifications did he have?" His response was "I knew I could trust him. . -. ~ . 12 He had handled money for me at the Country Club, he had been in business before and knew what running a business was l~ke". The employer admits that, but for the concerns about the grievor al~owing free golf, he would have been recalled to his former position of Shift Supervisor in the normal course. In the step 2 reply the employer has acknowledged that "until now the employment files show you have a good work record at the Golf Courseu. Therefore, the issue is whether the information received by the employer durin~ the 1989-90 off season and the grievor's conduct when confronted with that information, can be said to have adversely affected the grievor's qualifications to such an extent that his qualifications were no longer relatively equal to the qualifications of Mr. Reaker. The employer, besides taking the position that the grievor's qualifications were not relatively equal to those of Mr. Reaker made a further submission that by virtue of article 5.04 the grievor's rights under article 6.01 were extinguished when he refused the offer to be recalled to the parking lot attendant and golf attendant positions. The relevant portion of that provision states: A seasonal employee's seniority will be deemed to have terminated if the employee resigns, retires, is dismissed for cause (unless reversed by the grievance procedure) or fails to return for a season. . "- " " ~ ";¡ 13 Counsel's argument is that since the grievor refused the I. employer's offer to be recalled to the parking lot attendant I and golf attendant positions, he has "failed to return for a season" within the meaning of article 5.04 and has lost his seniority. Reference was made to the "work now and grieve , I I later" rule. We see absolutely no merit in this argument. I . The "work now rulell applies where an employee is given a direct order by a supervisor. Then, .subj ect to certain exceptions, the employee is obliged to comply with the order· ) and grieve later, or be guilty of insubordination. This is not such a case. There was no direct order by a supervisor to a person who was an employee. The grievor had no employment relationship at law. The only right he had was the right of recall based on his seniority. Based on his seniority and qualifications, the grievor was attemptinq to enforce his rights under article 6.01. It is absurd to suggest that an employee can lose his seniority because he elects to enforce his rights under the collective agreement. In our view the failure to return for a season, which will result in termination of seniority under article 5.04, must be' a recall that was in . compliance with the collective agreement. Where an employee believes in good faith that his rights are violated, he is entitled to refuse an offer of a recall. While his refusal may, depending on the circumstances, have a bearing on his duty to mitigate his - .- ~ " ~ 14 losses, it does not trigger a loss of seniority under article 5.04. Now we turn to the issue of relative equality of qualifications. Considering the nature of the duties and responsibilities involved in the Shift supervisor position, "qualifications" must be loosely interpreted to include ability and experience, since there are no formal or paper qualifications for such a positio~. As already indicated, the employer has conceded that the grievor had a good work record over his 7 years of employment at the Whirlpool Golf Course on a full-time basis. More importantly, he had a positive performance appraisal for 1989 in the very position in question as Shift Supervisor. Mr. Reaker worked on a part time basis over a period of 10 years at the Country Club. Besides being part time, his employment was not restricted to the golfing operation of the club. The evidence is that the club was run as a sinqle unit and that Mr. Reaker did "a little bit of everything", including as cook and waiter in the restaurant. No evidence was led as to the size of the golfing operation at the County Club which would allow us to compare that with the Whirlpool Golf Course operation, or the proportion of time Mr. Reaker spent performing golf related duties. However, what is clear is that Mr. Reaker had no experience in a supervisory position . ". . 15 in a golfing operation with the kind of responsibility that . the grievor had, over the 1989 season as Shift Supervisor at the Whirlpool Golf Course. The grievorts experience in the very position in question must be seen as a significant qualification. The incumbent had no experience in a responsible supervisory position in any golfing operation. The employer's evidence as to what negative information was considered against the grievor, was extremely vague. Mr. Gibson testified that he confronted the grie~or about the $ 100.00 incident. While Mr. McIlveen also testified that he suspected the grievor as responsible for this i,.ncident and that Mr. Gibson had confronted the griever~ later on in his evidence ~. McIlveen insisted that the grievor was not "accusedtl of that incident and that it was not a factor in the decision to not· recall him. We do not find this evidence to be credible. Given the admitted suspicion and the evidence that the grievor was confronted, we have difficulty believing that this incident was not imputed to the grievor, and that it weighed against the griever in the employer's final decision. Based on the evidence, we find that the employer considered the following in deciding not to recall the grievor as Shift Supervisor. (a) The Antonios' allegation. e ~ 16 (b) The Chuck, Waters allegation. . (c) The $ 100;00 incident. (d) The failure of the gr ievor . to admi t to item (a) above until step 2 of the grievance procedure. The Antonio's ~~~eqation The evidence indicates that in addition to the instance when Mr. Clark found the Antonios golfing without tickets, the grievor allowed his cousin to play free on one or two other occasions. There is no indication whether these latter occasions were before or after the new guidelines about golfing privileges were published in 1989. In any event, it is clear that at least on the one occasion the grievor knowingly breached the rules. Failure to follow the rules is a matter that relates to work performance and may properly be considered in assessing qualifications for purposes of recall under article 6.01. The Chuc~ Waters allegat.ion Mr. Gibson's evidence in this regard is only to the effect that Mr. Chuck Walters once told. him that "he can get on freell at the Whirlpool Golf Course. He did not testify that he was told that the grievor allowed Mr. Waters to play free. Mr. Gibson and Mr. McIlveen did not investigate how Mr. Wate,rs was able to get on free, whether he "jumped on" as we heard some golfers do, whether some other employee allowed him · .- ,. "- - , .. 17 on or whether the grievor did so. More significantly, the grievor was never confronted with this allegation. Mr. Waters testified that he did not at any time play golf without paying and that he had never told Mr. Gibson that he got on free. Even if we accept that Mr. Waters made the alleged statement to Mr . Gibson, the employer assumed wi thout any investigation whatsoever that the grievor let Mr. Waters on. There ,was no evidence adduced at the hearing to substantiate that allegation. Mr. McIlveen admitted that this allegation was a factor he considered in not recalling the grievor. He was not entitled to do so~ By his own admission this was only a suspicion. A mere suspicion, without a factual foundation, a is not grounds for denying an employee's seniority rights, which is recognized uniformally as one of the most important' rights an employee has under a collective agreement. The $100.00 incident Mr. McIlveen conceded at the hearing that there was no evidence whatsoever connecting the grievor to this incident. While the evidence indicates that this man had played gqlf without paying, there is no clue as to whether he was let on free by an employee or whether he illegally jumped on. There certainly is not an iota of evidence suggesting that the grievor allowed him on. Yet we find that the employer held this against the grievor. The employer was not entitled to · ,- ~ ~ ~ ~ 18 consider this incident in making· its decision about the grievor's recall. The qrievor's failure to admit to the Antonios incident Just as much as the failure of an employee to conform to established rules and procedures are relevant to an assessment of his qualifications, a failure to admit such non-compliance upon inquiry by the employer is also relevant to such an assessment. The seriousness of such a failure to admit must of course depend on the circumstances. It follows from the foregoing that the only valid negative factors against the grievor in assessing his qualifications for purposes of article 6.01 are that he allowed his cousin to play free on one or two occasions and that he failed to admit to that until the step 2 grievance meeting. The employer, in our view, improperly considered the other two factors. This Board has consistently held that in assessing whether the qualifications of two individuals were 'relatively equal, "... if the difference by which one applicant is better qualified than another is less than substantial and demonstratable, they are relatively equally qualified". Re Worsley 347/81 (Draper). See also, Re LadY Galt Towels Ltd., (1969) 20 L.A.C. 382 (Christie). · ,it, ~. 19 As the Board of Arbitration stated in a competition case in Re Fanshaw Colleqe of Applied Arts and Technology, (Devlin), Unreported 14 June 1990, at p. 9 11... it is generally accepted that an employee's disciplinary record can be considered in the context of a promotion provided that the record reflects upon the employee's ability or, in this case, , his qualifications and experience, in relation to the I requirements of the jab". In Re Alcan Smelters & Chemicals, (1988) 1 L.A.C. (4th) 237 (Hope), the Board stated in a transfer case as follows: I agree with the union that a discipline record pe~ se is not a sufficient reason to deny an employee a transfer where a right of transfer based on seniority is recognized. But where the discipline record relates to·work performance, it is a relevant factor to consider. Thus Boards of Arbitration have considered discipline records to be relevant to an assessment of an employee's ability and ,qualifications in the context of seniority provisions, where the conduct giving rise to the discipline relates to work performance. The grievor here does not have a disciplinary record as such. However, we do have conduct on his part which would have justified some form of discipline. In or view that conduct, i.e. the failure to follow rules and procedures, relates to work performance. In the circumstances, the employer was entitled to consider that · " 20 in assessing the grievor's qualifications. While we find that these factors, i.e. the breach of rules and the delay in admitting, adversely affect the grievor's "qualifications", that is not determinative of this grievance. The grievor's qualifications, apart from these incidents, consisted of 7 years of experience at the Whirlpool Golf Course and a satisfactory work record over that period. He had also performed the duties of the very job in question over one season. Mr. Reaker on the other hand had no experience working at the Whirlpool Golf Course. His only work experience relating to a golfing operation was at a country club. There he was employed over a period of somè 10 years, but only on a part time basis. Even then, his golf related duties consisted of only one of many duties he performed for the club, including working in the kitchen and the restaurant. Most significantly, Mr. Reaker had no experience in a position with supervisory responsibilities, like those in the Shift Supervisor position which the grievor occupied in 1989. Based on the foregoing, we are convinced that to start with the grievor1s qualifications for the Shift Supervisor position at the Whirlpool Golf Course were far superior to those of Mr. Reaker. Therefore, what remains to be decided is whether the grievor's conduct relating to the Antonio's I . . -. " ~ ì 21 incident and his failure to admit promptly lessened his qualifications to such an extent that it could be said reasonably that now Mr. Reaker's qualifications are substantially and demonstrably superior to the grievor's qualifications. In all of the circumstances, we must conclude that the answer must be in the negative. The evidence indicates that the golfing privilege guidelines were not strictly or consistently enforced by the employer. Mr. Gibson testified that he was aware that Mr. Clark, a management employee, had allowed free golf and that he disciplined Mr. Clark for that by "demoting" him to the smaller Par 3 golf course. However, the evidence indicates that Mr. Clark was still in a supervisory capacity at that course and had the same opportunity to work independently as he did at Whirlpool. He also suffered no loss in his pay rate. More importantly, Mr. McIlveen, who is Mr. Gibson's boss, and is ultimately responsible for labour relations issues, testified that as far as he knew, Mr. Clark's moving to Par 3 was the result of a re-organization and not· a result of discipline. Whether Mr. Gibson's version or Mr. McIlveen's version is accurate, this evidence is not indicative of key members of management paying attention to what is now claimed to be a serious concern. _. . - , 22 Mr. McIlveen was aware of the man who returned $ 100.00 because of his guilt after golfing without paying. If Mr. McIlveen was serious about enforcing the rules one would expect him to investigate this matter thoroughly. He was aware that Mr. Gibson confronted the grievor about this incident. However, until he heard Mr., Gibson's testimony he was not even aware whether Mr. Gibson had confronted any other individual. The uncontradicted evidence of Mr. William Shannon and Mr. Joseph Maryniak who,worked as starters at the Whirlpool Golf Course during the 1989 season, is that they had been instructed numerous times by Mr. Clark and Mr. Giajnorio, to let on individuals without tickets. He testified that on one occasion Mr. Giajnoro let on some relatives from Florida to play free of charge. It is conceded tha t Mr. Clark was a member of management. Whether or not Mr. McIlveen was aware of these infractions, the fact is that when employees see members of management violating the rules, they cannot be reasonably expected to strictly comply with the same rules. In this regard we do not accept the distinction Mr. McIlveen drew between a violation of the rules and what he described as 1lbending of the rules", which he says was what Mr. Clark and Mr. Giajnoro did. If the employerls position is that these individual's were somehow justified in what they did, . ~ . .......... ~ ., , 23 - it. was incumbent upon it to call them to testify first hand as to what they did and why. Also, Mr. Clark, a member of management, detected the grievor's cousin and wife golfing with no tickets at a time when the grievor was the only employee on duty. He asked the golfers to leave, but took absolutely no steps to confront the grievor as to how they qot on or to investigate. He did not even bother to report the incident to his superiors. That in our view constitutes condonation by a member of management~ Moreover, when Mr. McIlveen discovered this inaction on the part of Mr. Clark, no action was taken against Mr. Clark. . There is also evidence of inaction by the employer with· regard to employees flouting .·the rules. Under cross- examination Mr. McIlveen testified Mr. Clark once reported to him that a starter, Mr. Gerry Danstead, had allowed free golf. According to Mr. McIlveen, Mr. Danstead gave him a different story and he did not know whether to believe Mr. Clark or Mr. Danstead. without making any investigation or ·inquiry, Mr. McIlveen went on to re-hire Mr. Danstead for the next season, completely ignoring the information from Mr. Clark. Similarly, Ms. April Antonio, who worked in the Administrative Office of the Niagara Parks Commission was detected golfing without paying contrary to the rules. Her infraction was not . __0 .. 24 even reported to her superiors. All Mr. McIlveen did was give some friendly advice not to do it again. It is significant to note that several times, when union counsel asked Mr. McIlveen to explain the different treatment he accorded to the grievor and other individual's who also flouted the golfing privileges rules, Mr. McIlveen responded that his "primary concern" about the grievor was his failure to admit the wrong-doing. Therefore, even Mr. McIlveen 'implied that the allowing of free golf by itself was not a very serious infraction. When seen in ¢ontext, the grievor's conduct· when . confronted, though not to be condoned, cannot be seen as sufficient reason to not recall him. Firstly, we find that the grievor did not at any time deny the allegation that he allowed the Antonio's to play free of charge. His position was one of silence or "no comment". The grievor admitted during his evidence that it was a mistake for him to have refused to comment, but that at the time he did so because Mr. MeI 1 veen and Mr. Gibson had accused him about the man who repaid $ 100.00, when he had no knowledge whatsoever of that. He felt that no matter what he said, Mr. McIlveen had already decided he was guilty. The grievor testified that he was concerned about Mr. McIlveen's "honestylt and that he wanted I to talk to the General Manager. He admitted to the I · -- ,. , ~ 25 allegation, about the Antonios when the general manager's designee was present. considering the rampant flouting of the rules that was going on, the violation of the rules by at leas~ one member of management, the inaction by Mr. McIlveen with regard to Mr. Clark and the lenient treatment of Ms. Antonio, we have reservations about recognizing that there was a valid rule under the test enunciated in Re KVP Co. Ltd., (1965) 16 L.A.C. 73 (Robinson) . However, even if we did so, if this was seen as a discipline situation, because of the circumstances surrounding the enforcement· of golfing priyileges rules, the gravity of the gr ievor 's· conduct would be significantly reduced. In our view the conduct of the grievor did not indicate a lessening of the grievor's qualifications to such an extent that Mr. Reaker's qualifications could be said to be significantly and demonstrably superior. On the contrary, it is our conclusion that despite the infraction by the grievor and the delay in admitting, his qualifications for the shift supervisor position remained far superior to that of Mr. Reaker. Therefore, as the person with greater seniority, the grievor should have been recalled to that position pursuant to article 6.01. I .. -. , , I 26 For those reasons, the grievance is allowed. As agreed to by the parties, we remain seized for purposes of fashioning a remedy, if the parties are not able to come to a mutually acceptable agreement. Dated this 28th day of Buly, 1992 at Hamiltonß Ontario - N. Dissanayake Vice-Chairperson ,¿<.~~~. ~¿ . /'0 ~_____ E. seymour Member 0-~~,~ D. Montrose Member