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HomeMy WebLinkAbout1976-0066.Antle.76-11-24.’ ,i. :.: ,:1 Ontarto 66116 I . . : _. - CROWi EMPLOYEES 416/964 6426 Suite 405, GRIEVANCE SETTLEMENT 77 BZoor Strekt west BOARD TORONTO, Ontur-io. MS.7 lM2 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TNE GRIEVANCE SETTLEMENT BOARD Between: Mr. J. Antle And (Grievor) The Ministry of Correctional Services (Employer) Before: 0. M. Beatty J. W. Henley Chairman Member W. Walsh Member For the Grievor: Maurice N. Gagne - Ontario Public Service Employees Union For the Employer: A. H. Schaefer - Ministry of Correctional Services Hearing: Suite 405, 77 Bloor St. W., Toronto, November 2, 1976 -2- In the grievance brought before this Board, Mr. J. Antle, who is employed by the Ministry as a.Correctional Officer 2 at the Cornwall Jail, claimed that he was dismissed, effective May 18, 1976, without just cause, and sought to be reinstated with full back pay and other benefits retroactive to that date. However and following the second stage grievance meeting between the parties, the employer reconsidered the matter and determined that the penalty of dismissal was not warranted in the circumstances. Accordingly and in lieu of.that Penalty the employer imposed a suspension without pay of twenty working days, being the maximum penalty permitted under s.22(2) of The Public Service Act,together with a reprimand for certain other misconduct. In essence.then, it is that suspension and reprimand that this present grievance challenges. The circumstances giving rise to the disciplinary sanctions imposed by the employer against Mr. Antle are, on the evidence before this Board, not a matter of serious dispute between the parties. In essence, it was the evidence of the employer, which was adduced primarily through the testimony of Messrs. Gauthier and Rousseau who are, respectively, a Shift Supervisor and the Superintendent of the Cornwall Jail, that the suspension was imposed for certain insubordinate and insolent behaviour of the grievor while the reprimand was invoked for the grievor‘s falsification of the attendance -3- ‘. register and for his persistent failure to comply with certain oral and written instructions with respect to the wearing of. his uniform while on duty. More specifically, it was the evidence of Mr. Gauthier, which in most respects was corroborated by Mr. Brennan, that just prior to the conclusion of the day shift on December 22, 1975, the grievor refused to comply with a direct.order to return to the corridor of the jail to assist in conducting a count of the inmateszand that he did SO in a manner that could only be characterized as being both insolent / and obscene. As well and with respect to.the falsification of the attendance register it was Mr. Gauthier's evidence that the grievor, in reporting late for work on December 23, 1975, had in fact completed the time sheet as if he had reported on time. Finally and with respect to his failure to comply with the dressregulations issued by the Superintendent, it was the latter's evidence, which was confirmed by Mr. Gauthier, that Mr. Antle had persistently failed to wear a tie, which is part of the uniform worn by the correctional officer while he is on duty, notwithstanding the employer!s repeated attempts to have him comply. For his part, the grievor did not take serious issue with any of,the allegations made against him. Thus he conceded that'Mr. Gauthier had in fact spoken to him about wearing his tie on several occasions during the period between December 20-23, 1975 and that he had also been counselled about this -4- matter on several occasions earlier in the fall by Mr. Kelly,who is another of the shift supervisors in the Cornwall Jail. Indeed that particular issue was of sufficient concern to Mr. Kelly that inthe.appraisal report covering the period between August and December lg75.he drew particular attention to it. Indeed apart from his claim that none of the.guards were favourably disposed to wear a tie, Mr. Antle was unable to offer any legitimate reason for his failure to comply with his employer's instructions and memoranda on this matter. Moreover and while he testified that other employees had, on occasion, also failed to wear their ties as required, he did not in any way challenge Mr. Gauthier's evidence that both in the manner in which and the frequency with which he failed to comply with the employer's policies, he was clearly distinguishable from those other employees. Similarly and with respect to then incident on December 23, 1975 there is simply no credible evidence before this Board which can alter the fact that Mr. Antle did represent on the time sheet that he reported for work on time, when in fact he was half an hour late. Indeed and although Mr. Gagn;suggested that all of the employees regularly filled out the r,egister by simply in- serting the regular starting and stopping times of the shift that they were working even,and although they may have come to work earlier or been relieved of duty a few minutes before the completion of the shift, there is simply no evidence before this Board that would indicate that it was a general practice or was considered permissible or was tolerated for an employee ~22 .:. : -5- who reported late for work to misrepresent that fact. To the contrary and from his own evidence it is clear that Mr. Antle mfsrepresented the time at which he reported for work because he feared, unnecessarily as it transpired, that he might lose a half hour's pay. In short Mr. Antle was well aware of the of the impropriety of his actions, Finally and with respect to his insubordinate and insolent behavfour on December 22, 1976 again there is simply no credible evidence before this Board which.in any way undermines or 1 contradicts Mr. Gauthier's description of the events of that day. Indeed and to the contrary Mr. Brennan's evidence and evenmuch of the grievor's testimony is entirely consistent with Mr. Gauthier's recollection of that incident. Moreover, and while the grievor "doubted" that he "would have" sworn at Mr. Gauthier in a derogatory manner, he did concede thafin his emotional state, he could well have uttered obscenities and vulgarities. In any event and to the extent that the grievor's evidence was inconsistent with Mr. Gauthier's, we-would, far a variety of reasons, reject his evidence in favour of Mr. Gauthier's. In the first place, we found that at critical points during his cross examination, Mr. Antle's answers were evasive, incomplete and in all events entirely self-serving. By way of contrast Mr. Gauthier's evidence was not only.entirely consistent with the grievor's past employment record but as well was,both with respect to the incident itself and as to his reporting of it, corroborated incertain material -6- respects by the evidence of Mr. Brennan and Mr. Rosseau. ,Thus Mr. Gauthier's description of the grievor's refusal to obey a direct order and his use of profane and vulgar language is .entirely.consistent.with the fact that he hasp been disciplined twice before for similar behaviour and had, as evidenced by the evaluation form completed in December, demonstrated his unwillingness or inability throughout this period to cooperate with management and staff. Similarly Mr. Gauthier's evidence that he advised the grievor that he would submit a report on his insubordinate and insolent behaviour at the time of the incident, was corroborated, in part at least, by Mr. Rosseau's evidence that in fact Mr; Gauthier did .submit such a report. In sum, when weighed against'the testimony of Messrs. Gauthier, Brennan and Rosseau and considering the grievor's employment record in the immediate past, we.have no hesitation in concluding that the grievor did in fact refuse to comply with Mr. Gauthier's orders and in so doing did direct obscenities and vulgarities at him. In the result it necessarily follows that by his, conduct the grievor has exposed himself to the imposition of disciplinary sanctions. Very simply and as a general proposition arbitrators have consistently and uniformly held that an employee who disputes or challenges the propriety of an employer's orders should, subject to certain exceptions and considerations which are not relevant to the circumstances of the case, carry out those orders and only subsequently, through the grievance procedure, challenge / .;‘,, their propriety. Re Firestone Steel Products of Canada Ltd. (1975) 8 L.A.C. (2d) 164 (Brandt); Re Mueller Ltd. (1974) 7 L.A.C. (24 282 (Hinnegan); Re International Nickel Co. of Canada Ltd.( ~ 1974)) 6 L.A.C. (2d) 172 (Shime); Re Lake Ontario Steel Co. Ltd. ( 1968) 19 L.A.C. 103 (Weiler). This unanimity of arbitral opinion is premised upon the recognition, by arbitrators, of the employer's need to be able and his inherent right to direct and control his operations, to ensure that they continue unimpeded even when-a controversy may arise and inits concomitant authority to maintain such discipline as may be required to ensure the ef- ficient operation of its services. Moreover, in constructing such a principle, arbitrators have been'sensitive to the fact that generally,and subject to certain exceptions which are not material here, employees who perceive that their contractual rights have been violated by the employer's direction of order, . can, in the vast majority of circumstances, secure adequate and full redress through the grievance and arbitration process. In short, and as summarized by one arbitrator, this jurisprudence. holds that: r -7- sonem apparently think that, when a violation of contract seems clear, the employee my refuse to obey and thus resort to self-help rather than the grievence procedure. That is an errcmeotw point of view. In the first place, what appears to one party to be a clear violation may not seem so at all to the other party. Neitherparty can be the final judge as to whether the contract has been violated. The determinatiOn of that issue rest.5 in collective negotiation through the grievance procedure. But, in the second place, and nwre I . : .c -a - important, the grievance procedure is prescribed in the contract precise.ZG because the parties anticipated that there would be claims of violations which would reguire adjustment. That procedure is presc?ibed for all grievances, .notmerely for doubtful ones. .Nothingin the contract even suggests the idea that only doubtful violations nesd bs processed through the grievance procedure and that,clear viola- tions can be resisted through individual self-help. The only difference between a ‘clear’ violation and a 'doubtful' one is that the former makes a clear grievance and the latter a doubtful one. But both must be handled in the regular prescribed manner.... But &Y industrial plant is not a debating sod ety . Its object is production. When a cxmtroversy arises, production cannot wait for exhaustion of the grievance procedure. While that procedure is being pursued, production must go on. And some one must have the authority to direct the manner in which it is to go on until the controversy . is settled. That authority is vested in supervision. It must be vested'there because the responsibility for production is also vested there; aud'respousibility 'kust be accompanied by authority. It is fairly vested there &cause the grievance procedure is capable of adeguately recompensing em- ployees for abuse of authority by supervision. Re Ford Motor Co., 3 L.A.779 (Shulman) cited with approval in 'Re Lake Ontario Steel Co. Ltd. (1968), 19 L.A.C. 103, 108 (Weiler). In sum and applied.to the circumstances of the present case, even if the grievor believed Mr. Gauthier's order was not being con- sistently enforced,or that if he complied he was entitled to be paid at overtime rates, those were matters which could properly have been resolved through the grievance procedure after he had -9- complied with the order. His refusal to do so, particularly when it was effected in an obscene and insolent mannter merits the imposition of disciplinary sanctions. Re Toga Manufacturing Ltd. (1974) 6 L.A.C. (2d) 381 (Curtis). In the result, it remains only for this Board to I determine whether, in all of the circumstances, the penalties imposed were just and reasonable. On that issue this Board' has noted,in its previous awards that it has, by virtue of s. 18(3) of The Crown Employees'Collective~Bargaining Act, the unfettered discretion to amend or modify a disciplinary penalty which it perceives to, be excessive. However where, as here, the penalties imposed "fell within the range of reasonablei',disciplinary responses to the situation" (Re - International Nickel Co.'of Canada Ltd. (1966) 19 L.A.C. 118 (Weatherill)) and particularly where, as here, the grievor has manifested similar deficiencies in his work performance in the past, we would not, in the~usual case, be inclined to .- interfere with such sanctions. Accordingly and in the absence of any evidence that the employer discriminated against or in any way singled out the grievor, and there being.no evidence of mitigating or extenuating circumstances, surrounding his behaviour, this Board is not inclined to interfere with the penalties imposed. In the result, and for the reasons.given, Mr. Antle's : / I - 10 - grievance must be denied. Dated at Toronto this 24th day of November 1976. D. M. Beatty Chairman I concur J.&Henley I concur, but see‘addendum W. Walsh Member . IN THE MATTER OF AN ARBITRATION BETWEEN AND : Mr. J. Antle The Ministry of Correctional Services ADDENDUM The facts are recorded and assessed in the award and amount to a preponderance of evidence against the claim of the grievor. I cannot therefore dissent from the finding.' However, this should not be taken to mean that I agree with all of the reasoning expressed in the award. Respectfully submitted, “CL,,. r5i/J&’ Hamilton, Ontario 1