Loading...
HomeMy WebLinkAbout1991-0632.Lawrence.92-01-17 ONTAF~(O EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETI'LEMENT 'REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100, TORONTO, ON'~"ARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (476J 326-1388 780, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ONTARIO). MSG IZ8 FACSIMtLE/T~LE~COPIE : {4 t6) 326-~396 632/91 IN THE HATTER OF'~i~NARBITI~ATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE ORZEVANCE BETTLRMENTBOARD BETWEEN OLBEU (Lawrence) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) EmPloyer BEFORE: R. Roberts Vice-Chairperson J. McManus Member D. Daugharty Member FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE B. Labord EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING September 18, 1991 AWARD This is a discipline case. On April 22, 1991, the grievor was suspended without pay for one day because of his refusal to punch in and out on a time card, as required by the Employer. Previously, on July 19, 1990, the grievor had been given a writte~ reprimand for the same offense. For reasons which follow, the one- day'suspension is upheld; however, it is ordered that the suspension be removed from the grievor's disciplinary record on April 30, 1992. The events leading to the present arbitration occurred .at the warehouse of the Liquor Control Board of Ontario near the intersection of Highway 401 with Wellington Road. This warehouse is constructed in a particular way..It has a main office which is accessible to the public in the front of the building. ~etween this office and a 300,'000 sq. ft. warehouse, there is a security controlled entrance. All warehouse employees must use this entrance to get into and out of the. warehouse. Beside this entrance, there is a punch clock that all. warehouse employees were required to use. Apart from management personnel, two Clerk 3'$ worked in the office. Generally, they processed paperwork, performed filing and answered telephones. They reported to the Manager of the 2 warehouse, Mr. D. Smedley. Like all of the other office employees, ~hey were not required to punch in and out on the punch clock. The seniority date of the grie'vor was January 31, 1980. He 'initially entered employment as a Warehouseman 2 and progressed through the ranks to the position of Warehouseman 4. In this position, he was required to perform considerable lifting, and in September, 1986, he injured his back. From that point until March, 1989, the grievor was off on 'Workers' Compens.ation Benefits. He then returned to work in a job which the Employer had' modified to accommodate his physical disability. Previously, there had been a Warehouseman 4 Job wSich, that, in addition to the' lifting component involved performing clerical tasks similar to those performed by the Clerk 3's in the office. The Employe~ remoued the lifting functions from this job and the grievor returned as a Shipping and Receiving Clerk. For about the first six months, this job remained in the Warehouseman 4 classification; however, it was subsequently downgraded to a Clerk 3 classification and the grievor received a pay cut. 3 While he retained the classification of Warehouseman 4, the grievor continued to observe the rule requiring warehouse employees to punch in and out. After he was downgraded to Clerk 3, however, the grievor began having second thoughts about this and other requirements of warehouse employees such as the requirement to wear a uniform. He complained to Mr. Smedley, the Manager, and also Mr. R. Stafford, the General Foreman of the warehouse. Essentially, the grievor took the position that as a Clerk 3, he ought to be treated precisely the same as the Clerk 3's who worked in the office. Since they were not required to punch.in and out, wear uniforms, etc., he did not want to be required to do so. Both Messrs. Smedley and Stafford refused his request, and insisted that he adhere to the rules applicable to warehouse'employees.~ Perhaps as an indication of his displeasure, the grievor began sporadically to fail to punch in or out. This did not impede management in any significant way, because bargaining unit employees were paid a weekly wage and their punch cards were not used for purposes of calculating wage entitlement. There was some disruption to management, however, because, as Mr. Stafford testified, the time cards were used for purposes of keepinq track of matters such as absenteeism. On June 19, 1990, Mr. Stafford decided to bring this problem to the attention of the grievor. He sent the grievor the following non-disciplinary letter: Mr. Lawrence: Your duties are a part of the normal warehouse operations, and like the majority of warehouse Personnel'ygu are expected and hereby instructed to (Punch 'IN' & Punch ~OUT') use a time card. Failure to follow instruction can lead to disciplinary action being taken against you. Yours truly, (signed). R. L. Stafford The grievor was informed that he was expected to punch in and.out on his time card and that failure to follow this instruction could lead to disciplinary action being taken against him. In the four-week period following his receipt of this letter, the grievor consistently failed to punch in or out on his time car. On July 19, 1990, Mr. Stafford felt compelled to issue to the grievor the following written warning.: J. Lawrence Clerk 3 London Warehouse RE: Failure to Follow Instruction The letter to you on June 19, 1990, is regarding you punching your time care when arriving and leaving the warehouse (in and out).' You have been given a four week period in order to comply,, and you haven't. Consider this letter a written reprimand for ~ailure to follow instruction. Any further delay on the request made of you, will result in more serious disciplinary acti6n being taken again:st you, including suspension without pay. Yours truly, (signed) R. Stafford The grievor was advised that if he did not punch in and out as instructed,, he would face more serioUs discipline, including a suspension. For some time following his receipt of this written warning, the grievor complied with instructions, and punched in and ~ut on his time card; however, in late March'to early April, ~1991, the grievor once again began to record a pattern of failing to punch in or out on hi~ time card: On April 10, 1991, Mr. Stafford is~sued a letter to the grievor which called attention to his resumption of this pattern and his previous letter of reprimand. He requested the grievor to send a letter of explanation to Mr. R. A. Foster, the Director of Conventional Warehousing, explaining the matter. The grievor responded with a letter to Mr. Foster that reiterated 6 his original position, i.e., that he should not be required to punch in and out because the Clerk 3's who worked in the office were not required to do so. He requested Mr. Foster to look into the matter and arrive at a fair solution. Subsequently, the grievor's explanation was rejected and on April 22, 1991, Mr. Stafford sent the grievor the following disciplinary letter: Jack Lawrence Clerk 3 950 London Warehouse Because of your refusal too punch 'in' and 'out' (time card) in a proper and consistent daily manners, and in keeping in context with your letter of reprimand of July 19, 1991, you are hereby suspended 'without pay' for (~) day, that being W~dnesday, April 24, 1991. Yours truly, (siqned) R. Stafford The grievor was suspended for a period of one day. On May 7, 1991, the grievor filed~the grievance leading to the present proceeding. The evidence at the hearing indicated that since the one-day suspension, the grievor resumed punching .in and out on his time card in a consistent manner. When asked about this on cross-examination, he stated that he did so because be was told that if he failed to comply with the instruction he could be disciplined further up to and including dismissal, and he did not want to Lose his job. 7 The grievor also acknowledged that in late March and early April of 1991, when he resumed his pattern of not punching in and out, he realized that he would be disciplined more severely than with a written warning, but he chose to take the consequences in order to have his claim of unfairness dealt with, if necessary, at an arbitration proceeding. The grievor also testified on cross-examination that he did not believe that Mr. Stafford would be seriously inconvenienced in executing his managerial responsibilities if~he, the grievor, was not required to punch in or out. As far as absenteeism was concerned, he said, Mr. Stafford would know within five minutes of the starting time if he were hot there because the Shipping and Receiving Foremah, Mr. Sc~ultz, who relied upon the grievor to process the paperwork in his area, would be on the phone to Mr. Stafford in a panic in the event of the grievor's absence. Counsel for the Liquor Board submitted at the conclusion of the hearing that it was the right of the Liquor Board to determine the rules which applied to its warehouses and that the grievor was insubordinate when he resumed his pattern of failing to punch in and out after having had management's' rule regarding warehouse employees forcefully brought to his attention by means of a disciplinary warning which included within it notice that repetition of the offense could lead to'a suspension. 8 Counsel for the Union objected to the characterization of the discipline of the grievor as being for insubordination. This, counsel submitted, was a change of grounds because the letter of suspension dated April 22, 1991, was for the grievor's consistent failure to punch in and out and never mentioned insubordination. Counsel then went on to cha%lenge the reasonableness of the rule requiring all bargaining unit warehouse employees to punch in and o~t. Apparently in anticipation of this latter point, counsel for the Liquor Board submitted that if the grievor had wished to challenge the reasonableness of the rule, he'should have obeyed management's directive and then grieved. Counsel for the Union submitted, however, that it Was not possible for the grievor to adhere to the "work now, grieve later" standard in the circumstances of this case, because at the time of the events leading to this proceeding, the Collective Agreement between the parties did not have a non-discrimination clause and it was entirely uncertain whether in the absence of such a clause a grievance could have been filed challenging the reasonableness of · the punch in and punch out rule as applied to the grievor. The only viable way, counsel submitted, seemed to be the indirect route selected by the grievor, i.e., submitting to discipline for failure to comply with the rule and then challenging the reasonableness of the application of the rule at arbitration. 9 This panel of the Grievance Settlement Board has serious reservations about the wisdom of the course of .action that the grievor pursued in attempting to have resolved at arbitration the reasonableness of applying to him the punch in and punch out rule for bargaining unit warehouse employees. It seems to us tlhat the grievor may have gone too far in an attempt to prove a point, and we would not encourage other employees to follow a similar course of action. It does not promote good labour relations to provoke arbitration proceedings, which are very serious and expensive. That having been said, we are anxious to put the present matter to rest. It would make no sense at all to issue an award whose only effect might be to stimulate the filing by the grievor of yet another grievance. For this reason, .we intend to address the reasonableness of applying management's rule regarding punching in and punching out to the grievor in his current status as the only Clerk 3 in the warehouse. From our point of view, the rule was entirely reasonable, both on its face and in its application to the grievor. There is nothing discriminatory about basing the applicat~[on of work place rules upon the location of employment, as opposed to job classification. The warehouse was a geographically separate area from the office'where the other Clerk 3's worked. Moreover, unlike the office, it was a secure area with controlled access. The other Clerk 3's were not under the 'supervision of Mr. Stafford, the 10 General Foreman of the warehouse. Mr. Stafford had a legitimate and reasonable use for the time cards of bargaining ~nit employees who worked in the warehouse, i.e., checking for absenteeism and the like. It was more than reasonable to require the grievor, who remained a bargaining unit employee working in the warehouse, to comply with the same rule regarding punching in and punching out that he observed before he was reclassified and that was observed by all other bargaining uni% employees in his Workplace. When the grievor refused to observe this rule after having previously received a written reprimand for failing to observe this same rule, he committed an act which warranted more severe discipline in the form of a one-day suspension'. It is our view, however, that some recognition should be given to the fact that the grievor is not in the same position as an employee whose repetition of an offense is indicative of someone requiring further correction. Accordingly, it seems to the Board that this is not a case in which the suspension need remain on the grievor's disciplinary record for a lengthy period of time. We do not anticipate that there will be any repetition of the offense, and in light of this, it is our direction that in the absence of any further instances of 11 discipline between April 22, 1991 and April 22~.1992, all reference to the suspension will be expunged from the grievor disciplinary record as of the latter date. DATED at London, Ontario, this 17th day of January, 1992. R. J. RoDerts Vice-Chairperson J. McMa.nus, - Member