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HomeMy WebLinkAbout2001-1115.Brennan.02-04-08 Decision ~ M ~ ON"mm EMPLOYES DE LA L'Of'RONNE ~~~ ~;';~A~:~E~E DE L ONTARIO ___~___ SETTLEMENT COMMISSION DE REGLEMENT "IIIl_~ BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE (416) 326-1396 GSB# 1115/01 UNION# OLB438/01 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo re THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO LIquor Boards Employees' Umon (Brennan) Gnevor - and - The Crown In RIght of Ontano (LIquor Control Board of Ontano) Employer BEFORE RIchard M. Brown Vice-Chairperson FOR THE GRIEVOR Glen Chochla Counsel CarolIne Engelmann GottheIl BarrIsters & Sohcltors FOR THE EMPLOYER Ahson Renton Counsel Legal ServIces LIquor Control Board of OntarIO HEARING DATE Apnl 3, 2002 2 Aaron Brennan receIved a three-day suspenSIOn for alleged mIsconduct as a casual employee at the Ottawa warehouse on May 29, 2001 He was notIfied of the suspenSIOn on June 7 but no gnevance was filed untIl September 7 ThIS prelllnInary award addresses the employer's contentIOn that the gnevance should be dIsmIssed as untImely I The dlsclphnary process began wIth a notIce of Intended dlsclphne, dated May 29,2001, from the operatIOns manager, John CrupI ThIS IS further to your refusal to comply wIth consecutIve requests made by your supervIsor on the mornIng of May 29,2001 F or your clanficatIOn, tlus IS In regard to the operatIOn of specIfic maclunery Please submIt In wntIng wltlun three workIng days an explanatIOn for tlus occurrence Should a meetIng be scheduled folloWIng receIpt of your wntten statement, please be advIsed that you are entItled to Umon representatIOn as dlsclphne may result from the meetIng Should you fall to reply wltlun three workIng days Management wIll act upon currently aVailable InfOnnatIOn The gnevor asked for addItIonal InfOnnatIOn whIch Mr CrupI provIded In a letter dated May 31 Please accept the folloWIng as further clanficatIOn of my letter dated May 29,2001 On the mornIng of May 29, 2001 Mike Sabounn asked you to dnve another maclune wlule GIlles DesJardIns was tryIng to fix the one you had been dnvIng Mr Sabounn asked Mr DesJardIns If It would take very long and he rephed that It mIght take a wlule At that tllne Mr Sabounn asked 3 you to dnve another maclune You IndIcated that you would Just Wait for the one you had been dnvIng to be repaired. Mr Sabounn then asked you to dnve #9 maclune You refused to do so, statIng agaIn that you would Wait for the other to be repaired. After a lapse of approxImately five mInutes Mr Sabounn once more asked you to dnve maclune #9 AgaIn you refused. Mr Sabounn then asked you to mop the floor In AIsle "G" wlule you waited. You refused to comply wIth tlus request also At tlus pOInt Mr Sabounn asked you to report to the maIn floor and assemble orders there untIl the maclune was ready A short tllne later you returned to the basement and Mr Sabounn agaIn asked you to dnve maclune #9 as repairs to the other maclune had yet to be completed. You refused clallnIng maclune #9 was unsafe to dnve The gnevor's wntten reply, dated June 3, takes Issues whIch some of the facts alleged, asserts a concern about safety and questIOns Ius supervIsor's motIves On the mornIng of May 29th, I was prepanng my order as usual, when my maclune was not workIng properly I went and told my superVIsor that my maclune was actIng up He suggested that I Wait untIl It would not work anymore so we could show the mechamc When the mechamc came to see what the problem was, Mr Sabounn suggested that I take another maclune I then rephed that I would need a maclune wIth a board, he rephed then go sweep the floor I was havIng lower back paInS so I rephed my back IS hurtIng I suggested gOIng to find another maclune on another floor wIth a board. He said OK, so I dId Around 10 00, the maIn floor foreman told me that I was to return to the basement When I returned after break, my foreman was not In Ius office, so I tned Mr CrupI'S office He was In a meetIng at the tllne, therefore I tned pagIng Mr Sabounn He dId not call me back so I waited by Ius office untIl he came back. When he arnved, he suggested I use the maclune wIth no board. I rephed I don't feel safe dnvIng a maclune wIth no board, and then I asked If he could call the 4 mechamc to put a board on the maclune He said no I asked If I could call hlln myself He said do what you want In a sarcastIc way I proceeded to call the mechamcs shop He dId not answer the phone, so I returned to Mr Sabounn's office to let hlln know that the mechamc was not In Ius office and If I could go see hlln In Ius shop to see If he may have a board for that maclune He then rephed "yeah, yeah" In front of Mr Stewart so I went to the mechamcs shop When I arrIved my maclune was fixed so the mechamc told me to take It back to ItS floor, whIch was In the basement When I arrIved back to basement, I started to assemble the orders I feel that Mr Sabounn was upset wIth me, as he was not speakIng to me I receIved a letter later that day saYIng I dId not comply wIth my supervIsor's orders I felt I dId tlungs In accordance to my own safety ThIS Issue was brought up to Mr John CrupI In the past I never dId feel safe operatIng a maclune wIth no board I dId try It several tllnes before never gettIng over the fear of holdIng the labels In my hand and tryIng to operate a maclune wlule trYIng to hold on the handle also I really feel that Mr Sabounn does not hke me and tlus IS the reason why I asked management to transfer me to a dIfferent floor ThIS was done the next day I feel that Mr Sabounn has been harassIng me for three or four months off and on I can't seem to do anytlung nght In Ius eyes I made management aware of a pnor problem In wntIng I was told that they would talk to Mr Sabounn but tlungs dId not change I don't know how to deal wIth tlus problem on my own The letter llnpOSIng a three-day suspenSIOn IS dated June 7, 2001 and sIgned by Mr CrupI I am In receIpt of your response to my letters of May 29th and 31 st I cannot accept your reasons for faIhng to comply wIth sImple requests from your superVIsor There are a number of maclunes of tlus type beIng used In the faclhty on a daily basIs IncludIng the one you refused to dnve Your supervIsor also made an attempt to accommodate you by askIng you 5 to mop an area of the floor wlule your maclune was beIng repaired. ThIS dId not seem to SUIt you eIther It IS your supervIsor's responslblhty to re-asslgn you to other dutIes If you are unable to contInue perfonnIng your current ones ThIS uncooperatIve behavIOur IS unacceptable and must cease You are hereby suspended from duty wIthout pay for three (3) consecutIve shIfts to be served Fnday, June 8th, Monday, June 11th and Tuesday, June 12th, 2001 Any further IncIdents of tlus nature wIll result In further dlsclphnary actIOn up to, and IncludIng, dIsmIssal II RICk Pope, zone representatIve for the umon at the Ottawa warehouse, was the only wItness to testIfy about what transpIred between June 7, when the gnevor receIved the letter of dlsclphne, and September 7, when the gnevance was filed. HIS eVIdence was neIther contradIcted nor challenged In cross-eXamInatIOn Mr Pope has been zone representatIve SInce 1996 He IS the most semor umon official at tlus locatIOn and performs Ius dutIes outsIde of workIng hours wIthout any remuneratIOn In the nonnal course, he IS the one who fills out a gnevance form and dehvers the completed fonn to management A gnevor also receIves a copy of tlus fonn Dunng Ius suspenSIOn, Mr Brennan telephoned Mr Pope at the warehouse wlule he was workIng and asked hlln to file a gnevance Mr Pope had not yet receIved a copy of the suspenSIOn letter and he decIded to Wait for Ius copy to arrIve before InItIatIng a gnevance SometIme after the gnevor returned to work, he asked Mr Pope whether a gnevance had been 6 filed. BehevIng In error that he had lodged a gnevance, Mr Pope answered In the affinnatIve In fact, two gnevances had been filed on behalf of the gnevor In Apnl Those gnevances related to two suspenSIOns of two days each, one for allegedly not folloWIng a dIrect request from a supervIsor concernIng a beer pallet and the other for allegedly leavIng work wIthout completIng an early departure fonn as requested by Ius superVIsor and wIthout InfonnIng hlln The stage-three meetIng about these two gnevances was held on June 18 and attended by Messrs Brennan and Pope At tlus meetIng, no mentIOn was made of any gnevance concernIng the three-day suspenSIOn llnposed In June The gnevances filed In Apnl were scheduled for heanng on September 4 On that date, Mr Pope receIved a telephone call from Jean Chaykowsky, a gnevance officer wIth the umon, InqUInng as to whether he had filed a gnevance about the three-day suspenSIOn He undertook to check and dIscovered to Ius dIsmay that no such gnevance had been lodged. He then submItted the gnevance dated September 7 Mr Pope testIfied tlus was the only tllne he has ever neglected to file a gnevance when asked to do so In attemptIng to understand how the mIstake occurred, he surmIsed that he must have thought one of the two earher gnevances related to the three-day suspenSIOn The summer of 2001 was an usually busy tllne for Mr Pope He sold Ius house on May 8, wIth a cloSIng date of July 13, and then bought another house on June 2, wIth a cloSIng date of October 31 GIven the Interval between these two dates, he had to find temporary accommodatIOn and faced a rental market wIth a low vacancy rate He eventually found a one- 7 bedroom apartment where he hved wIth Ius spouse and two cluldren He took Ius current umon files to the apartment and stored older files at the home of Ius wIfe's parents Much of Ius furnIture was stored elsewhere NotIng the record lugh temperatures reached In the summer of2001 and the absence of air condItIonIng In the warehouse, Mr Pope described the season there as a "long and hot" one dunng whIch "tempers flared" and dIsputes arose over a number of matters IncludIng overtIme III The tllne hmlts for fihng a gnevance are found In artIcle 27 of the collectIve agreement 27 3 STAGE 1 (ComplaInt Stage) (a) (1) An employee who has a complaInt or a dIfference shall dISCUSS the complaInt or dIfference wIth luslher supervIsor, as desIgnated by the Employer, wltlun ten (10) days of the employee first becomIng aware of the CIrcumstances gIVIng nse to the complaInt or dIfference (11) Unless otherwIse agreed between the employee and luslher supervIsor, a meetIng In respect of an employee's complaInt shall only be attended by the employee and luslher superVIsor (b) The supervIsor shall consIder the complaInt or dIfference and gIve luslher response to the employee wltlun ten (10) days of the dIscussIOn (c) If the complaInt or dIfference IS not satIsfactonly resolved by the supervIsor, It may be processed wltlun an addItIonal ten (10) days from the date of the supervIsor's response or the eXpIratIOn of the tllne hmlts set out In (b) above, In the folloWIng manner 8 274 STAGE 2 The employee may file a gnevance In wntIng wIth luslher supervIsor specIfYIng the clause or clauses In tlus Agreement alleged to have been vIOlated In short, an employee has ten days to dISCUSS a complaInt wIth Ius supervIsor at stage one, the supervIsor then has ten days to respond, and the employee has a further ten days to submIt a gnevance In wntIng at stage two The partIes agree the tllne hmlt for gnevIng IS mandatory Exactly when dId the tllne for fihng a stage-two gnevance expIre In the case at hand where the gnevor dId not utIhze the stage-one complaInt process? In my VIew, havIng elected to forego stage one (sometlung to whIch the employer dId not obJect), the gnevor was reqUIred to file a wntten gnevance wltlun ten days of reCeIVIng the letter of suspenSIOn on June 7, because tlus IS the penod allowed by artIcle 27 for raiSIng a complaInt at stage one In other words, the tllne hmlt for fihng a stage-two gnevance expIred on June 17 ThIS analysIs leads me to conclude the gnevance was filed on September 7, some eleven and one-half weeks after the deadhne Counsel for the umon dId not suggest It was late to any lesser degree IV SectIOn 48( 16) of the Labour RelatlOns Act permIts a tllne hmlt, even a mandatory one, to be extended at the request of one party "where the arbItrator or arbItratIOn board IS satIsfied that there are reasonable grounds for the extensIOn and that the OpposIte party wIll not be substantIally preJudIced by the extensIOn" 9 I was referred to the folloWIng cases deahng wIth the extensIOn of tllne hmlts Becker Mzlk Company and Teamsters UnlOn (1978), 19 L.A.C (2d) 217 (Burkett), Greater Nzagara General Hospltal and OntarlO Nurses AssoczatlOn (1981),1 L.A.C (3d) 1 (Scluff), Cassellholme Homefor the Aged and Canadzan UnlOn ofPublzc Employees (1982), 3 L.A.C (3d) 377 (H D Brown), Helen Henderson Care Centre and Servlce Employees UnlOn (1992),30 L.A.C (4th) 150 (Emnch), Ferrantl-Packard Transformers Ltd. and Unzted Steelworkers of Amerzca (1993),36 L.A.C (4th) 307 (HaeflIng), Exolon-ESK Co o.{Canada and CommunzcatlOn, Energy and Paperworkers UnlOn (1993), 37 L.A.C (4th) 430 (HaeflIng), Kltchener Waterloo H05,pltal and London and D1Strzct Servlce Workers' UnlOn (1994),44 L.A.C (4th) 293 (H D Brown), Donwood Instltute and OntarlO Publzc Servlce Employees UnlOn (1997), 60 L.A.C (4th) 367 (Brandt), Hotel D,eu Cornwall and OntarlO Publzc Servlce Employees UnlOn (1997), 63 L.A. C (4th) 72, and Royal (1rest Lf{ecare Group and Servlce Employees InternatlOnal UnlOn (2000), 91 L.A.C (4th) 389 (Craven) I have carefully revIewed these decIsIOns and wIll return to them below to the extent necessary to resolve the matter In dIspute The leadIng decIsIOn on what constItutes reasonable grounds for an extensIOn IS Becker Mzlk where ArbItrator Burkett IdentIfied three factors to be consIdered. The exerCIse of the eqUItable dIscretIOn vested In an arbItrator under s 37(5a) of the Act reqUIres a consIderatIOn of at least three factors These are (1) the reason for the delay gIven by the offendIng party, (11) the length of the delay, (111) the nature of the gnevance If the offendIng party satIsfies an arbItrator, notwIthstandIng the delay, that It acted wIth due dlhgence, then If there has been no preJudIce the arbItrator should exerCIse hIS dIscretIOn In favour of extendIng the tIme-hmlt If, however, the offendIng party has been neghgent or IS 10 otherWIse to blame for the delay, eIther In whole or In part, the arbItrator must nevertheless consIder the second and tlurd factors referred to above In decIdIng If reasonable grounds eXIst for an extensIOn of the tllne hmlts (page 222) In Nzagara General HOspltal, Professor Scluff cIted wIth approval the award In Becker Mzlk and expanded the hst of factors to be consIdered from three to SIX 1 the reason for the delay, 2 the length of the delay, 3 the nature of the gnevance 4 whether the gnevor was responsible for the delay, 5 whether the delay occurred In fihng the gnevance or later In the gnevance process, and 6 whether the employer could reasonably have assumed the gnevance had been abandoned. As already noted, the Instant gnevance was approxImately eleven weeks late HavIng asked for a gnevance to be filed, and havIng been told one had been, Mr Brennan IS not to blame for what happened. Rather, the delay resulted from an Inadvertent error on the part of the responsible umon officer The ImmedIate subJect matter of the gnevance IS the three-day suspenSIOn llnposed In June of 200 1, but the gnevor was subsequently dIscharged. As the employer wIshes to rely upon tlus suspenSIOn as part of the dlsclphnary record warrantIng dIsmIssal, the outcome of tlus gnevance has a dIrect beanng upon the gnevor's Job secunty Although the delay occurred In the InItIal fihng of the gnevance, the gnevor's letter of June 3 dId put the employer on notIce that he dIsputed the allegatIOns made agaInst hlln and took the posItIOn that any dlsclphne was unJustIfied. Beanng all of 11 these factors In mInd, I conclude there are reasonable grounds for an extensIOn of the tllne hmlt for fihng a gnevance The facts before me are dIstIngUIshable from those In any of the cases upon whIch the employer rehes where no extensIOn was granted. The decIsIOn In Helen Henderson dealt wIth a classIficatIOn gnevance and the decIsIOn In Cassellholme Home for the Aged wIth a Job postIng gnevance NeIther of those gnevances had any relevance to the gnevor's contInued employment The sItuatIOn here IS also very dIfferent than the one In Kltchener- Waterloo Hospltal where the local umon presIdent, after consultatIOn wIth a staff representatIve, decIded not to gneve an employee's dIsmIssal The gnevance was filed three weeks late when another staff representatIve returned from hohday and took a dIfferent VIew of the matter In dechnIng to extend the tllne for fihng a gnevance, ArbItrator Brown wrote These facts are substantIally dIfferent from the cases where the extensIOn of tllne has been requested on the basIs of Inadvertence or carelessness or Inexpenence of umon officers or other such reasons as there was no Inadvertence or careless omISSIOn to take steps under the collectIve agreement but rather the contrary In that a consldered declslOn was taken by the re5,ponslble unlOn officer of the unlOn not to .file a grzevance concernzng the grzevor's dlscharge (page 302, emphasIs added) In short, the tIme hmlt was not extended because the umon reversed ItS decIsIOn after It had expIred. In the case at hand, Mr Brennan was not to blame for the delay, whereas In both Exolon-ESK Co and Donwood Instltute the gnevor was the one responsible for the gnevance beIng filed late In each case, the gnevor was a former umon officer and hIS or her fault was among the factors upon 12 whIch the arbItrator rehed In denYIng an extensIOn The gnevor In Exolon- ESK procrastInated for more than two months before contendIng he should have been recalled to work. DISmISSIng Ius gnevance as untImely, ArbItrator HaeflIng wrote ThIS IS also not a case where delay In fihng a gnevance would be attributed to the local umon Instead, any fault caUSIng the delay In fihng the gnevance IS In tlus case dIrectly attributable to the gnevor's own lack of actIOn (page 435) In Donwood Instltute, the gnevor waited fourteen weeks before challengIng her layoff In not extendIng the tllne hmlt, ArbItrator Brandt noted. [T]he gnevor In tlus case was herself responsIble for the delay and cannot rely on bad advIce or InefficIency by the umon In faIhng to process her gnevance In a tImely manner as eXCUSIng the delay (page 378) V I have already concluded there are reasonable grounds for extendIng the tIme hmlt In thIS case The employer does not contend It would be preJudIced by an extensIOn AccordIngly, I hereby extend the penod for fihng a gnevance The employer's tImehness obJectIOn IS dIsmIssed. Dated at Toronto, thIS 8th day of Apnl, 2002 RIchard M. Brown, VIce-Chairperson