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HomeMy WebLinkAbout1981-0446.Cousins.83-01-04 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE: 416/598- 0688 446/81 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (N. Cousins) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: R. L. Verity, Q.C. Vice Chairman H. Simon Member G. Peckham Member For the Grievor: E. Baker General Secretary Ontario Liquor Boards Employees' Union For the Employer: W. Kenny Counsel Hicks, Morley, Hamilton, Stewart & Stone Barristers & Solicitors Hearing: December 21, 1982 AWARD In this Grievance, Norman Cousins alleges that he has been disciplined by the Employer without just cause pursuant to Article 3.2 of the Parties' Collective Agreement. The discipline imposed took the fdrm of a one day suspension served on July 9th, 1981 for an incident of alleged insubordination by the Grievor which occurred the preceding day. The settlement requested was "immediate reinstatement" with compensation for lost wages and credits. At the time of the incident the Grievor had approximately 41/2 years seniority with the L.C.B.O. and worked as a Warehouseman 4 at the Employer's distribution depot on Cooper Street in the City of Toronto. He had never been previously disciplined during the course of his employment. On July 8th, 1981, the Grievor was one of 25 bargaining unit employees working the afternoon shift from 4:30 p.m. to 11:00 p.m. at the Cooper Street depot. The Foreman in charge of that shift was Garry Reive and as such he had the responsibility for supervision of all employees. Mr. Reive was assisted on that occasion by Larry Delory a 23 year veteran with the L.C.B.O. presently classified as Assistant Foreman. There was agreement between the Parties regarding many essential facts. There were, however, numerous differences concerning the recollection of the events surrounding the incident in question. Generally it is a function of the distribution depot to fill liquor orders from licencees such as taverns and hotels. Orders are of liquor. "pick-car" line selecting cases belt apparatus. number 2 and was filling liquor orders of liquor and placing those cases on a Once placed on the belt the cases were received from licencees for cases or partial cases On July 8th, 1981, the Grievor was working on by conveyor mechanically transported to a merger area where each order would be individually assembled, and from there loaded onto trucks for delivery. There are several pick-car lines at the depot. On July 8th, 1981, the pick-car was inoperative on line 2, and had been in that condition for several days. The evidence is clear that the shut down of the pick-car on line 2 caused the Grievor and two other employees working with him to do additional physical lifting in placing cases of liquor onto the conveyor belt. However, the employees were assisted,to some degree, by a second mechanical device colloquially referred to as a "cherry picker" which removed cases from heights. According to the Grievor's evidence, he and fellow employee Jeff Sloan alternated the work load throughout the duration of the shift between marking invoice numbers and placing approximately 30 to 40 orders on the conveyor belt. At approximately 10:00 p.m. the employee working in the merger area, colloquially referred to as the "merger man", a Mr. Sullivan, notified the Grievor and Mr. Sloan to replace three cases incorrectly delivered to the merger area. Having performed that task Mr. Sloan and the Grievor were called upon minutes later to replace another three cases of liquor incorrectly conveyed to the merger area. The Grievor in the company of Mr. Sloan, attended at the merger area carrying the three correct cases. At that time, Mr. Sullivan and a Ken Reive were present at the merger area. The Foreman Garry Reive and the Assistant Foreman, Larry Delory were also in attendance. The Foreman Garry Reive testified that he instructed the Grievor and Mr. Sloan to carry the three incorrect cases back to line 2. Mr. Sloan took two cases, however the Grievor refused to take the remaining case of liquor telling the Foreman (in accordance with Mr. Reive's evidence) "let the fork truck driver take it back". The Foreman repeated his instructions to the Grievor, and again the Grievor refused to comply. Mr. Reive testified that he requested a third time that the Grievor remove the case of liquor saying "please take it back". Again the Grievor refused the order, left the merger area and was subsequently observed by the Assistant Foreman approximately 180 feet away from the merger area relieving Mr. Sloan of one of the two cases that he was carrying. Mr. Reive's evidence was substantiated by the evidence of the Assistant Foreman, Larry Delory. In his evidence, the Grievor admits his refusal to take back the one remaining case of liquor. The Grievor admits saying "no" on three separate occasions to the Foreman's order, and alleged that he told the Foreman "if you can tell me why the fork truck can't take it back, I will in fact take the case back". Mr. Reive disputes that portion of the Grievor's testimony. In his written explanation of the incident, the Grievor stated in part (Exhibit 6): "when we had given the correct cases to them, Garry pushed the mistaken cases towards us and told us to return them to the line. I reminded Garry that it was the fork-lifts responsibility to do this and all he did was to repeat his wish for us to return the cases, so I refused to do so. He asked a third time. So I told him that if he would tell me why the fork-lift could not return the cases, I would in fact return them myself. Garry chose to ignore my question and my reminder about the fork-lift standard everyday responsibilities so I returned to work on the line....." The evidence is clear that the Foreman Mr. Reive and the Assistant Foreman Mr. Delory immediately proceeded to the Grievor's work area. Mr. Reive instructed the Grievor to leave the depot floor and advised him that he was suspended for one full day for failure to carry out orders. According to Mr. Reive's evidence, the Grievor proceeded to walk away and returned to whisper to the Foreman that he was a "sadist". Mr. Delory verified the Foreman's description of the Grievor's actions although Mr. Delory did not hear the Grievor's whispered remark to Mr. Reive. In his explanation, the Grievor testified that he had refused to comply with the Foreman's repeated orders at the merger area because the fork-lift driver was positioned close to the merger area and could have performed the task. The fork truck driver, Lennox Marshall was the only other witness called by the Union. His testimony was to the effect that he was stationed in the proximity of the merger area on the fork-lift truck at the time of the Grievor's confrontation with the Foreman. Mr. Marshall testified that he was unable to hear any part of the Grievor's conversation with Mr. Reive although he was close enough to see both protagonists. The evidence is clear that the normal practice in the distribution depot was that where one or two cases of liquor had been delivered in error, those cases would be returned by the employees to the line. When the number of casas of liquor delivered in error in a merger area exceeded one or two cases it was the practice that those cases would be returned by the fork truck driver, if available. In assessing the evidence, this Board is of the view that the fact situation in the instant Grievance is a classic example of insubordination. By his own testimony, the Grievor has admitted that he refused the Foreman's order and by way of defence alleged that the order was unreasonable and that he had been working under adverse working conditions. The Grievor alleged tha.t he eventually carried out the Foreman's order at least in part by assisting Mr. Sloan in carrying one of Sloan's two cases part way back to line 2. On the evidence, it is clear that Mr. Sloan was forced to make two trips to the merger area. In our opinion, it is irrelevant whether the fork truck was in the merger area at the time in question. Clearly, on the evidence, the Grievor disobeyed the Foreman's order. In addition, the Grievor's assistance to Mr. Sloan did not comply with the original order. In the circumstances, we cannot find that Mr. -8 Reive's order was in any way unreasonable. In addition, the Grievor's reference to adverse working conditions affords him no excuse. The Grievor's gratuitous comment to Mr. Reive was both uncalled for and improper. In must be remembered that the work place is not a debating society. To hold otherwise would result in total disruption in the work place which in turn would benefit neither the employer nor the employees. As has been frequently stated, the rule of thumb in cases of this nature is "obey now and grieve later". There are exceptions to this general rule such as where an order would subject an employee to any danger to health and safety or that an employee in the exercise of that order would engage in any illegal act. None of these exceptions are present in the instant Grievance. We adopt the rationale of Vice-Chairman Gorsky in Re R. W. Ralph and The Crown in Right of Ontario (Ministry of Correctional Services), 364/80 & 379/80 when it is stated at page 5 of that Award: "It is a generally accepted proposition of arbitrators that an employee who disagrees with an order from his employer should, with certain exceptions, obey those orders and later, through resort to the grievance procedure, endeavor to challenge the propriety of the order In the instant Grievance, the conduct of the Grievor amounted to insubordination and called for the administration of discipline. See also Teresa I. Menezes and Ministry of Government Services, 225/79 (Prichard). We are unable to find that the penalty of a one day suspension was in any way unreasonable. We were concerned by the Grievor's attitude that he was justified in his actions and had a right to refuse an order that he believed to be both unnecessary and unreasonable. On the other hand, we are influenced by the fact that the Grievor has an unblemished record during his tenure with the Ministry which dates back to November 11th, 1976. Accordingly, it is our award that this Grievance shall be dismissed. In the event that there is no further offence of insubordination on the part of the Grievor for a period of two years from the date of this Award, any and all references to the instant matter shall be removed from the Grievor's personnel records. DATED at Brantford, Ontario, this 4th day of January, A.D., 1983. 7: 3600 R. L. VERITY, Q.C. VICE-CHAIRMAN /1-74%"- /7"' /16: H. SI ON -- MEMBER PARTIAL DISSENT I agree with the majority that the grievor has committed an act of insubordination by refusing to follow an order by his supervisor. However, I must consider the extenuating circumstances in this case. July 8th, 1981 was an exceptionally hot day; the incident happened at the end of the shift at approximately 10:00 p.m. The pick-car was not operating for a number of days and the grievor had to do additional physical lifting more than is normally done by the operators. The grievor, and his fellow worker Jeff Sloan, had just replaced 3 cases a few minutes prior to being asked to replace another 3 cases. Normally the Fork Truck driver would return the wrong cases and, when the grievor noticed the Fork Truck and the driver standing close by, he naturally asked that he take the cases back. The Supervisor ignored the grievor's suggestion without giving him any explanation and kept on insisting that the grievor and Mr. Sloan return the cases. The grievor then became upset with the supervisor's attitude and returned to his work station. It is obvious that on the way he changed his mind and he assisted Mr. Sloan by carrying one of the cases the rest of the way. In consideration of the above, as well as the unblemished record of employment the grievor has had with the L.C.B.O. for almost 5 years, I feel that a letter of reprimand would have sufficed in this case. HARRY SIMON, Board Member