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HomeMy WebLinkAbout1981-0103.Digenarro.81-08-26 DecisionMI ONTARIO CROWN EMPLOYEES 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE: 416/598-0688 103/81 162/81 295/81 321/81 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. G. Digennaro - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Before: Prof. J.W. Samuels Vice Chairman Ms. M. M. Perrin Member Ms. H. J. Laing Member GRIEVANCE SETTLEMENT BOARD For the Grievor: For the Employer: Hearings: Mr. M. Green, Counsel Golden, Levinson Mr. m.p. Moran, Counsel Hicks, Morley, Hamilton, Stewart & Stone June 18 and July 27, 1981 CONTENTS Page The Facts 1 Conclusion List of Exhibits 8 2. 3. The Facts This case involves four grievances, two each against a ten-day suspension and a discharge meted out to the grievor after two incidents. The Board of Arbitration heard evidence over two days and, in my view, the relevant facts are as follows: 1. On December 24, 1980, an incident occurred at the Cloverdale Mall liquor store in Toronto (Store #207), between the manager of the store, Mr. M. Ploszczansky, and the grievor, Mr. G. Digennaro, who was a full-time employee of the LCBO. As a result of this incident, Mr. Digennaro was ultimately suspended with- out pay for ten days. The circumstances were: a.Around 3:00 P.M., Mr. Perkins, one of the assistant managers, found a case with broken bottles in the custodian's room. He brought them to the office for the manager's attention. The case was wet and therefore the bottles had been broken recently. On this point, the manager and assistant manager disagreed. The former testified that the case was already dry. I prefer to accept the evidence of the assistant manager. b.It is the clear policy and practice that "breakers" must be recorded for audit purposes. Normally, this is done by taking the necks of the broken bottles to the office as evidence of what was broken. It seems that this is to be done within a reasonable time after the breakage. The grievor knew of this policy. c.The manager was very upset because the person who caused the breakage had not reported it and set off to find the cul- prit. d.In the basement, Mr. Polszczansky found Mr. Digennaro and three part-time em- 4.. ployees. He enquired of the grievor what had happened and was told that the case had fallen off the belt. This was true. The grievor and the other employees in the basement were filling orders from the employees above in the store, who were trying to keep the shelves stocked on this busiest day of the year for the store. The belt conveys cases from •the basement. e.At this point, the manager chastized the grievor for failing to bring the breakers to the office. There is some dispute as to whether or not Mr. Ploszczansky used the expression "God Damn!" here, but I accept that he did, based on the grievor's testimony and the evidence of Mr. Grys, another employee, concerning the manager's propensity to use these words. f.The manager's ire was kindled not only by the breakers just found, but by this repetition of a similar situation in- volving the grievor only ten days pre- viously. g.Having just been chastized, the grievor blew up. He directed a stream of in- vective and obscenities at Mr. Ploszczansky. He struck the case he was working on with his fist. He suggested that with one phone call to his MPP he could have the manager removed (the grievor had originally got his job through his local MPP). h.Alarmed by this conduct (and I am sure by their relative sizes -- Mr. Digennaro is a tall strong man, Mr. Ploszczansky is of medium build), the manager turned and headed for the stairs, saying some- thing about suspending the grievor. The grievor followed him. Mr. Ploszczansky thought he was being chased; Mr. Digennaro says he was following to hear what the manager was saying. i.When he reached the main floor, Mr. Ploszczansky called for help and was joined by the two assistant managers, Perkins and Hrycyshyn. The three men returned to the basement. Mr. Digennaro was alone in one area of the basement. 5. . The grievor resumed his stream of invec- tive and obscenity towards Mr. Ploszczansky. k. The manager said to Mr. Digennaro that he was suspended for the day and the grievor made it clear he would not accept Mr. Ploszczansky's order. Again he used foul language towards the manager. 1. The grievor continued working until closing time and left the store after the manager did. In. Mr. Ploszczansky, much shaken and scared, left shortly after closing time. 2. On April 22, 1981, another incident occurred between these two people, and as a result of it, Mr. Digennaro was discharged. The circum- stances were: a.Because of the incident on December 24, Mr. Ploszczansky recommended that the grievor not receive a salary increase in April 1981. The grievor knew of this and was of the understanding that the recommendation was being grieved by the Union. b.Between December 24 and April 22, the grievor had served one month in training working in the office of the store, in close contact daily with the manager. They had gotten along quite well. C. Apart from this, however, the grievor tried to avoid the manager because Mr. Digennaro felt the manager was "on his back". Indeed, the grievor had re- quested a transfer to another store. The grievor's feeling about the manager being "on his back" seems to have risen out of a number of small incidents, the most significant of which were -- (i)an occasion when Mr. Ploszczansky refused to let the grievor leave the store during working hours to make a phonecall; (ii)several occasions when the manager asked the grievor to fill empty bins, when the grievor felt other employees should have been asked to do the work; 6. (iii)the way in which Mr. Ploszczansky dealt with him on the matter of breakers; (iv)several occasions when the manager stared at him; and (v)several occasions when the manager suggested that the grievor and several others were trying to undermine him. d.In the late morning, on April 22, the grievor was taking cash in the store when the manager called him aside to a position in the sales area of the store. He handed him the note informing the grievor that he'd be getting no salary increase. The grievor became angry and ' told the manager it was all his fault. e.The two men parted -- the manager heading to the office and the grievor to the •back of the store and the kitchen. A few minutes later, Mr. Ploszczansky came to the kitchen and the argument resumed. It continued out into the back area of the store. By all accounts, Mr. Digennaro used the foulest of language and described Mr. Ploszczansky in the most obsene fashion. Among other things, the grievor threatened to "put Mr. Ploszczansky 6 feet under". The grievor admits this threat and it was overheard by several other employees, one of them being the Union's Zone Representative, Yarema Wojtiw. Later the grievor would tell Mr. Burns, the LCBO District Supervisor, that he meant no harm because he re- spects old people. f.Following this violent conversation, Mr. Digennaro went out to lunch and Mr. Ploszczansky returned to his office, absolutely shaken and terribly afraid. g.After lunch, Mr. Wojtiw talked in pri- vate with the grievor and, as a result of this conversation, warned the manager to be very careful. h.The other events of the afternoon are not terribly significant. They include a call to the Metro Police and two 7. officers coming to talk with those involved. No charges were laid. Several employees stayed near to the manager to protect him and he was "escorted" home after 6 by an employee who drove behind him to his home and waited untij Mr. Ploszczansky was in the door. Mr. Burns, who had come to the store when called by the manager su- spended Mr. Digennaro indefinitely pending the decision of the Discipline Committee. 3.The other evidence concerning the grievor's attitude and conduct indicates an admitted violent temper, some unwillingness to accept authority, but a good worker. In particular, the grievor admitted that, if he was treated . the same way in the future, he'd react in similar fashion again. He was hired by the LCB0 on February 14, 1977, and had received a written warning and one-day suspension in 1979 for wearing running shoes at work and for his conduct when questioned by the acting manager concerning his dress. He had moved to the Cloverdale Mall store on June 23, 1980. 4.The evidence concerning the attitude and practices of the manager shows a humane individual, dedicated to his job, and perhaps somewhat more excitable than average. In- deed, he appeared to have been concerned for Mr. Digennaro and the advancement of his career. He remains terribly shaken by the confrontation with the grievor. Conclusion There is really no significant factual dispute here. The two real questions are whether there was suf- ficient provocation to mitigate the penalties imposed on Mr. Digennaro; and whether, in any event, the ten-day suspension and discharge were excessive penalties in all the circum- •stances. Even Mr. Green acknowledged that the grievor's conduct clearly warranted heavy discipline. In my view, a review of the cases and text com- mentary would serve no purpose here. I have made that review and it suffices to say that the question of just cause for discipline depends on the facts of the particular case, the impression the parties make on the Board of Arbi- tration (and what this says about the future prospects of the grievor in the same employment), and the sense of justice of the arbitrator. In this case, I do not think the grievor had any justification for the way he acted. His feeling that Mr. Ploszczanky was "on his back" was the result of an over- sensitive appreciation of the situation. Mr. Digennaro took many cases of rightful and justifiable exercise of authority as a personal insult. While the grievor did not plan his outbursts against Mr. Ploszczansky, he displayed a pattern of bad temper and gross over-reaction which cannot be condoned. Mr. Green made much of the fact that Mr. Digennaro never really made a substantial physical threat -- confining himself to kicking or striking objects. I agree here en- tirely with Mr. Moran -- when the threatening pattern is established, does one need to wait for the final physical 8. Done at London, Ontario, this 26ulday o August. 1981. Samuels, Vice-Chairman assault? The answer must be "no". Mr. Digennaro has never directly apologized to Mr. Ploszczansky. In sum, I am of the clear view that there was just cause for both the ten day suspension and the discharge. Consequently, all the grievances are denied. "I dissent" (See attached) M. M. Perrin Member H. J. Laing Member 9. LIST OF EXHIBITS 1.Report, dated December 29, 1980 2.Letter of Suspension, December 29 1980 3.Letter to grievor from Director of Store Operations, January 20, 1981 4.Memorandum, April 15, 1981 5.Letter of Suspension, April 22, 1981 6.Letter of Discharge, May 6, 1981 7.Letter from grievor's record, September 10, 1979 8.Letter from grievor's record, November 15, 1979 9.Re incident of April 22, 1981 10. OLBEU (G. Digennaro) - and - L.C.B.O. DISSENT The Chairman has outlined the facts in this case. Several incidents however appear to indicate the manager over- reacts to Mr. Digennaro in general. The manager, Mr. Ploszczanky, gave evidence to the effect that the grievor instigated a "threatening" situation seen by an LCBO employee and witness. This employee however did not perzeive this situation as threatening. Secondly, during Mr. Digennaro's four-week stint working in the office for bookkeeping training (March 6 to April 3, 1981), Mr. Ploszczanky, working in close proximity with the grievor (and complimenting the grievor on his work at that time), did not feel threatened during this period. There was also an indication that at some point early in the new year, Mr. Digennaro was of assistance to the manager when he was having difficulty with a customer. This member would have allowed the grievance with respect to the discharge and substituted: (a) a lengthy suspension, and, (b) a probationary period. Marion M. Perrin, Member