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HomeMy WebLinkAbout1979-0065.Lariviere.79-12-12Between: Before For the Grievor For the Employer Hearing: IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. F. Lariviere and The Crown in Right of Ontario Ministry of Housing Professor Katherine Swinton -Vice-Chairman Mrs. Mary Gibb Member Mr. H. Simon Member Mr. Grenville Jones Canadian Union of Public Employees 15 Gervais Drive Suite 503 Don Mills, Ontario Mr. A. P. Tarasuk Central Ontario Industrial Relations Institute Suite ZOO, 85 Richmond St. W., Toronto, Ontario May 17th, 1979 June 27th, 1975 September 21, 1979 October 26th, 1979 October 27th, 1979 Suite 2100, 180 Dundas St. W. Toronto, Ontario ._ -‘- -2- This is a grievance in which Frank Lariviere claims that he was unjustly discharged on February 23, 1979 for falsification of company records and failure to carry out his employment duties. The employer, Ontario Housing Corporation, has treated certain incidents in January and February of 1979 which led up to the discharge as a culminating incident and consequently relied on the grievor's past / disciplinary record in coming to its decision to discharge. The grievor has been employed full time by OHC since June 26, 1972 and at the time of discharge was employed as a Serviceman- Heating at the Bay Mills, Parkwoods and Rayoak housing projects in Metropolitan Toronto. The events giving rise to the discharge occurred in December, 1978 and January and February 1979 and had to do with the maintenance work carried out on the three heater and blower units, known as Reznors,at 365 Bay Mills Boulevard, a 14-storey highrise building. These units, located on the roof of the project, provide fresh air for the hallways of the building. The air is then circulated into the apartment v units under doorways. It was part of Mr. Lariviere's job to service these units, as he was responsible for the heating plant and ventilation systems in the projects. Sometime in late November of 1978, OHC decided to implement a preventive maintenance programme for the servicing of their equipment. Each piece of OHC equipment was numbered and each month a checklist sheet for that equipment was issued, indicating the operations to be performed by an inspector on the equipment for the particular month. Some tasks were required monthly, others quarterly. Work to be done . -. -3- in a particular month was indicated by a circle (Ex.23). The person performing the encircled operations was to tick a column indicating performance or place an "x" indicating problems with the equipment. The new system was explained to the Maintenance Supervisors in,OHC buildings by the Maintenance Manager for District I, Walter Elliott,in November. They in turn were to explain it to the Heating Servicemen and groundsmen in their projects. There'is some conflict,in the evidence as to when the new system was actually explained~to Mr. Lariviere. The first maintenance reports filed under the new system were dated November 1978. Lariviere's supervisor at the time, Paul Poirier , indicated that he instructed the grievor in the operation of the system in late November or early December. The grievor said that he received two 'batches of checklists (November's and December's) in early December, a few days before he was to go on vacation and this date seems to have been accepted by counsel for the employer during the hearing. It is not disputed that the grievor did not receive written instructions. It was his evidence that his supervisor could provide little guidance about the system other than to offer him the use of an office and to say "work your way through it." The grievor said that he informed his supervisor that much of the November work had already been done, and his supervisor said that the grievor could just check off the required tasks without redoing the work. This is what he appears to have done in the November reports (Ex.20). He testified that he followed the same course for the December checklists when he had ., . -4- already done the tasks (Ex. 18) It is the truthfulness of these reports, as well as those filed in January (Ex. 23), which led to the discharge. The employer argues that 'the grievor entered checks beside tasks which he failed to perform and that he failed to maintain the Reznors properly. ,The employer's reason for coming to this conclusion arises from an occurrence on , January 24, 1979. At that time the griev,or was absent. The building .~ ~~~ .~. supervisor, Henry Pospischil, who had recently replaced Poirier, called in an outside heating contractor, Willi Pioch of Correctair Gas Services Ltd., to deal with a tenant complaint regarding the bathroom and kitchen exhaust system. While checking the exhaust system,also on the roof at Bay Mills, Pioch checked the Reznors, because they were part of a total ventilation system. He discovered several problems. The North unit,was not in use. There were ignition problems and whenhe started the unit, the noise from the operation, caused by badly worn bearings, was so great that he had to shut it down. The central unit was working at close to normal level, although the fan belts needed adjusting. The South unit was also very noisy, again indicating<bearing wear. The fan belt was also slipping badly. It was Pioch's view that the units had not been serviced since the summer, and he notified Pospischil and later confirmed his opinion in writing,to OHC (Ex. 10). Subsequently, Pospischil', with the approval of the Maintenance Manager, Elliott, called in J.J. Wilson Sheetmetal to investigate the condition of the Reznors and to do necessary repair work. William Boissonneauld inspected the Reznors. He found the North' and South units to be very noisy because of bearing wear. The belt on the South unit ., . -5- was very loose. The filters on all three units were quite dirty, and he estimated that they had not beencleaned for three months. This information was included in a report to OHC (Ex. 13). Boissonneauld later repaired the units by replacing,the shaft, bearings, and pulley on the North unit and the bearings on the South unit. He estimated that the bearing wear on the North unit had taken place over two to three months and on the South unit for one month at most. He also estimated that the equipment had not been serviced for three months. The evidence of Walter Elliott, District Maintenance Manager, was also to the effect that he found the filters to be very dirty and the fan belts loose on the Reznors when he checked them in late January. The North unit was not operating. Considering these r&ports and having checked the preventive maintenance records (Ex. 18, 20, 23),which showed that maintenance work had allegedly been done, George Buckley, District Housing Manager, called in the grievor on February 21 or 22,1979 and asked whether the grievor understood the preventive maintenance progrannne and had completed the specific work thereunder. The'grievor said that he had done so, and prior to the programme he had carried out maintenance duties on a weekly basis. Acting on the reports which he had received, Buckley decided to suspend the grievor, and discharge subsequently occurred on February 23. II The first issue which must be addressed in this case is the justification for imposing discipline for falsification of company records and failure to carry out work duties. There was some confusion, at times, during this hearing as to the exact grounds for the discharge. The discharge -6- appears to be based on the falsification of the preventive maintenance reports and the failure to perform duties required in those ~reports. The evidence with regard to the bearing problems of the Reznors seems to have been presented in order to show that the grievor had not serviced the machinery adequately for an extended period of time/despite the check marks on the preventive maintenance forms. "Falsification of company records" is a charge which carries with it serious implications, yet it must be remembered that. the charge can take on various forms: falsification of production records, falsification of attendance forms, or falsification of employment application forms: Arbitrators have regarded conductwhich strictly speaking falls within the term "falsification of company records" as deserving of different degrees of censure, depending on the form which the falsification has taken ~Brown & Beatty, Canadian Labour Arbitration, p.316). Falsification of production records, such as false reporting of output records, has been treated very seriously, because this type of dishonesty can in some cases be regarded as a fon of theft from the employer (Phillips cables Ltd. end International Union of Electrical Radio and Machine Workers, Local 510 '(1974), 6 L.A.C. l2d) ~35 (Adam); Re UAW, Local 3257 end The Steel Equipment Co. Ltd. (19641, 14 L.A.C. 356 (Reville)). The empl,oyee is not only disrupting the employee's record system; but he may also be interfering with the employer's ability to carry out its operations. In addition, , he is often profitting at the employer's expense (Consumer's Gas CO. and Independent Gas Workers' Union, (unreported-Rayner, 1978)). Such deliberate misconduct must be regarded as meriting some form of disciplinary -7- action, in order to deter repetition of this type of conduct by the particular offending employee , as well as by other employees in the future. , Yet even in such serious situations, arbitrators have' often reinstated employees,substituting lengthy suspensions (me United Steelworkers of America, tical, and The Steel Equipment Co. Ltd.,.Supra; Pilon and M.ini+y of Health, 151/78 (Eberts); Re UAW, Local 127, and Ontario Steel Products Ltd. (19621, $3 UC 197 (Beardall) The question which must be answered here is whether the grievor's conduct falls within the scope of such deliberate and damaging falsification. In each of the cases in which disciplinary action was held to be warranted for falsification of company records, the grievor‘had deliberately acted to create false records. The gravity of the offence was further aggravated by the,length of the period during which the falsification continued or by the degree of complexity in the falsification. For example in E, heard by another panel of this Board, it was noted that.there was a complex system of falsifying absenteeism records by the grievor, a factor influencing the Board in coming to its decision to suspend the grievor for one year. In this case, while there may be some acts which are technically "falsifications" by the grievor, they are'in no way of the same nature or quality as those in cases such as Pilon or The Steel Equipment case (supra). On examining the evidence, it can be concluded that the grievor did, on one occasion, check off assigned duties on the preventive maintenance sheets when he had not performed those duties. This was in January, 1979, when the grievor checked that he had cleaned the filters of the Reznors and lubricated the motor and fan (Ex.23). By his own evidence, he,did not clean I -8- the filters that month, because he felt that this was a lower priority than other work which he had to do. The lubrication was not done because it was impossible to do on those particular units, according to the evidence of Lariviere,as well as that of several other witnesses. With the November and December reports, there is no deliberate and/or complex effort to mislead the employer. The November reports were admittedly completed without actually doing the assigned duties, but, as the grievor said, the forms were not received until December. The required tasks had already been performed and his supervisor, Poirier, agreed that he could just.fill in the fonts without redoing the work. The December forms (Ex.18) were filed in an incomplete form, with no checks beside some duties assigned for the three Reznor units (e.g., lubrication, clean unit, clean filters on No. 1, etc.). Yet ' these forms were accepted by the griever's supervisor in this incomplete condition, and the District Office made no 'connnent. Therefore, there is no apparent falsification here. Furthermore, the grievor testified that the preventive maintenance forms were given to him with a minimum of instruction as to how to handle them. There is a preventive maintenance manual, filed as Ex. 15. It is not clear if the grievor received it. Even if he did so, it provides virtually no guidance as to the proper manner for completion of the forms. The grievor did contact Elliott at the District Office about the. forms. Elliott told him to give feedback and recommendations about the new system. In the November forms for the Parkwood/Rayoaks development, -9- the grievor did so, making many annotations regarding'the frequency or type of servicing demanded (Ex.40). In some cases, for example, lubrication was required for equipment which required no lubrication and he noted this. In considering the evidence before us with regard to the preventive maintenance'forms, it is difficult to conclude that the grievor was guilty of a serious attempt to falsify company records, analogous to that in the other cases which have been considered. The manner in which the preventive maintenance programme was implemented appears confusing and . invites misunderstanding. The grievor received little in the way of instruction and, in fact, was asked to critize the system, indicating the tentative nature of the progranune. The grievor is a skilled tradesman, used to scheduling his own work and using his own judgement as to the servicing needed far equipment. His work performance had not been questioned in almost seven years with OHC, and he,has always received acceptable ratings for work performance from supervisors. In December 1978, he was presented with two sets of preventive maintenance forms (November and December), one form for each piece of equipment, requiring him to do tasks which~he may have already performed, or in degrees of frequency which, in his skilled estimation, he questioned or which might even be impossible for the equipment. The Board does not doubt the employer's right to require an employee to do maintenance tasks more or less,frequently than an employee might consider'necessary, for that is the employer's prerogative if in the employer's judgment.the tasks are necessary. HOWeVer that is not really the issue before us, at least with the November and December reports. The corporation's expectations of the grievor with regard to these reports i - 10 - were not made clear to him. In fact, he was encouraged to make recommendations about the system. Furthermore, his supervisor and the District Office accepted incomplete forms from him. From the evidence it would not be unreasonable for the grievor to conclude that the system was in an experimental stage, since it was in the process of implementation and wrinkles were still being ironed out. Therefore, it ,is difficult to find any culpable behaviour in the completion of the November and Cecember reports, for there appears to be no deliberate attempt to falsify ,records. Rather, there is confusion as to expectations and perhaps some inaccuracy, which is not blameworthy, in his reporting as a result. In coming to this conclusion, the Board has not been unmindful of certain difficult aspects of the grievor's personality. He is a very independent person with very definite opinions and he has experienced difficulty in working with several supervisors over the ,years. In October, 1977 he was suspended for a partial shift, later reduced to a written warning by another panel of this Board (147/77) for concealing an inventory record from his supervisor, Mr. Buckley. The grievor, believing certain other employees were taking things from a stockroom under his control without authorization, hid a stock control card and refused to give it to his supervisor. Professor Swan, in the earlier award, described the conduct as "petty and officious" (p.6), since it disrupted the employer's investigation into the alleged misappropriation without any reasonable justification for doing so. These comments, plus observation of the griever's conduct during his testimony in this hearing, make it clear that the grievor has difficulty in adapting to the exercise of authority by others, and that his view z - 11 - of incidents can be self-serving.' Nevertheless, in filling out the' November and December reports, we conclude that the grievor was not just resisting authority, but was not clearly informed of the employer's expectations, and he should not be disciplined on the basis of these reports. The January reports must be treated separately, for at this point, the system was entering its second round (although technically its third month of implementation). This time,'the grievor said that he cleaned the filters, when he had not done so. Therefore, he did falsify the records and did fail to carry out an assigned duty and disciplinary action is warranted. Before dealing with that issue,it is necessary to deal with the extensive evidence regarding the bearing wear on the Reznors. It would seem that the employer is arguing that the bearing failure detected in January 1979 also showed a failure to carry out assigned duties (and perhaps carries an implication that the grievor deliberately falsified the November and December reports in total). From the evidence, however, the Board can not draw the inference that the grievor's conduct did cause the bearing wear. Three witnesses, Willi Pioch, William Boissonneauld, and Walter Wood (an engineer and Vice-President of Engineering of Delhi Industries Ltd.), all said that no preventive maintenance would prevent bearing wear, although a tight fan belt could cause premature wear. At most, once wear started,it could be reported and, therefore, shaft qear might be prevented. Both Pioch and Boissonneauld felt that the bearings in the North Reznor had been worn for two to three months, indicating that - 12 - the grievor had not cared for the units for that period. It is difficult to conclude that they are correct for several reasons. First, they testified that the North unit was very noisy. There would be consequent noise within the upper hallway of the apartment building. There had been no tenant complaints about noise, nor had the supervisor, Poirier, heard noise when he was on the upper floors. Secondly,.the grievor had been on the roof at least.in the week of December 18, 1978, checking the South Reznor.. He reported to Poirier that there was electrical trouble which prevented the heater from working. Poirier called in an electrician, who was unable to work because of weather conditions. The grievor also said that he slackened the fan belts on the blower system in order to reduce cold airflow into the hallways. Thirdly, Poirier said that he believed that the grievor would have reported any problems, had he detected them, for that is what he had done in the past. In late January, the grievor said that he reported electrical problems in the North Reznor to his new supervisor, Henry Pospischil.;~and showed these problems to him. Popischil did not recall going to the roof with the grievor, although he did recall speaking with the grievor about problems with the North unit before Pospichil,took over. From this evidence, plus the inference drawn from Lariviere's extensive comments on the November maintenance forms, which indicate an awareness of and interest in the state of the equipment, we would conclude that the grievor should not be disciplined for failing to carry out his duties because the bearings on the Reznors were worn and had to be replaced in February 1979. - 13 - From the evidence we would conclude that the grievor was maintaining the equipment as he felt, in his trained judgement, to be necessary. This was not new equipment which he was being asked to service. The units were approximately six years old, and when the grievor came on staff at Bay Mills in July 1977, he had complained about the poor state of maintenance in which he found the machines. As a result, over the next year,,the central unit was reb.uil~t.. The 'evidence shows that the bearing-wear on the North and South units could not have been prevented, but at most detected earlier. The shaft replacement might then have been avoided, in the opinion of Boissonneauld, who replaced it. Yet Walter Wood, an expert witness, testified that he always recommended replacement of the shaft; when replacing the bearing, to ensure better fit. He also said that the time between bearing wear and shaft wear is hard to estimate. This would seem to be a matter of professional judgement. In this case, we prefer to rely on Mr. Wood's disinterested judgement about the shaft. While we do not find that the grievor had failed to carry out 'his duties, thus leading to the necessity of replacing the bearings on the Reznors, the Board is well aware that the griever's supervisors were dissatisfied with the state of the Reznors in January - the loose fanbelts, the dirty filters, and the worn bearings discussed above. The grievor testified, as did his supervisors, that prior to December 1978 the grievor had carried on his own maintenance programme. Part of the present problem obviously arises from the fact that his view as to the degree of maintenance and servicing necessary seems to be different from that of his supervisors. - 14 - For example; he said that he cleaned filters by knocking the dust out monthly and washed them every six months. Others might think it better to wash them monthly. This is a matter of judgment, and there is clearly room for disagreement, as the conflicting evidence before this Board from Woods, Boissonneauld and Pioch with regard to the necessary servicing for Reznors, showed. An employer should make clear to .the employee what standard 1 is expected before it disciplineshim for failure to meet that standard. The preventive maintenance forms are a clear step forward, yet there is still room for differences of opinion as to what it means to "clean filters" or "clean unit." 1 Therefore, the only conduct which seems to merit disciplinary action is the failure to clean the filters in January and the recording of a check to indicate that the grievor had done so. Such conduct does warrant a penalty. The Board concluded that discharge is too severe in the circumstances, even if this is treated as a culminating incident and resort is made to the griever's previous record. The falsification incident must be looked at within the context of the introduction of the preventive maintenance scheme. This is not a case in which the ( grievor has created an elaborate or continuous scheme designed to defraud the employer. He has failed to do one duty and has indicated that he did so. He is definitely deserving of disciplinary action, for the employer has, in effect, issued an order to perform a duty and he has not dcne so. Furthermore, the grievor has had difficulty, at times, in adapting to authority, and it is clear that he must follow work orders and accept the fact that his employer can change his routine, should it desire to do so. r . - 15 - The question which must be faced is the appropriate penalty for this conduct. The grievor is 56 years old, a widower, with two children partly dependent upon him. He has worked for OHC since June 1972, and his difficulty in obtaining alternative employment and his seniority make us reluctant to uphold the discharge. However, consideration must be given~ to his prior record and to the gravity of the misconduct in assessing the appropriate penalty. There is concern that failure to clean the filters could ultimately be a danger for the tenants, although there was some difference of opinion as to the gravity of the condition. Woods testified that filters prevent i dirt building up on the fan and consequent imbalance and motor slowdown. Yet Pioch, the first contractor, never checked,the filters and Boissonneauld, who found them very dirty, did nothing. The Reznors had been without filters for several years, and filters were not installed until the summer of 1978. The grievor testified that he did clean the filters, although his standards may have been more lax than some other standards would be. In some circumstances, continued failure to do duties, such as failing to clean the air filters, might prove dangerous to the tenants. It is understandable that the employer should be concerned about this. Nevertheless, the evidence does not lead to the conclusion that danger was created here, nor that the grievor's conduct was likely to be repeated so as to endanger tenants in the future. Nevertheless, the misconduct does warrant disciplinary action and the grievor's past record is checkered. The written warning for concealing a corporation document on October 6, 1977 has been mentioned \ (Ex.5). He was also given a 5-day suspension in November, 1977 for - 16 - failing to obtain his employer's permission before taking time off (Ex.6). The grievor, who had been ill and expected back to work November 14, telephoned on November 15, requesting that he be given vacation leave for November 14 to 18, 1977. Apparently, his mother was very ill. He was suspended for five days and denied pay for the period. On grieving, this was changed to vacation leave, but the 5-day suspension stood. The grievor was also denied pay for February 27, 1978 because he failed to provide a medical absence certificate for this date. The employer also filed evidence of letters to the grievor from his supervisor regarding lateness in February, 1974 (Ex.4) and reports of various incidents from his supervisor to the District Office in October and November 1974 and February 1975 (Ex. 25-29). Neither of these types of evidence is of assistance here. Not only are they distant in time, but the reports were never brought to the grievor's attention, nor did they form the basis for disciplinary action. Therefore, they are to be disregarded. The warnings and suspensions ares of some concern, being more recent in time. The culminating incident doctrine allows an employer, on the occurrence of a "final" incident, to look to the employee's total record and to.decide, on the basis of repeated misconduct, that the employee has failed to learn from the prior penalties and, therefore, the employment relationship should be terminated, "Corrective" discipline has failed..Discharge, however, must be regarded as a last resort in light of its grave impact on both the employer and the employee. In relying on the Prior record, there should be some similarity in the quality or kind of conduct in the Prior as well as the present incidents, in order that i't can reasonably be decided that the employee has failed to learn from C - 17 - the prior penalty and that he cannot learn from the present disciplinary action. (Stelmakovicb and Ontario Housing Corporation, 167/?8 (Adams)). In this case, Mr. Tarasuk, for the employer, argued that the prior incidents demonstrated persistent resistance to authority and that the present incident is of the same kind. Technically, any failure to comply with the employer's rules could be designated as a resistance to authority.' One must then look more closely at the incidents here to decide if there is indeed similarity. It must be concluded that this is 'the grievor's first work-related offence. It arose in circumstances where there was some confusion as to just what was expected of the grievor, in the way of paperwork and of routine. Furthermore, the grievor is interested in his job, as his recommendations on the preventive maintenance forms show. After considering all of these factors, the Board has concluded that discharge is excessive in the circumstances and that a two-week suspension should be substituted pursuant to s. 18(3) of the crown Employee's COllective Bargaining Act. A telegram was sent to the parties on November 7, 1979 indicating this decision and ordering that the grievor be reinstated forthwith. He is to receive backpay subject to the two-week suspension and deduction for amounts received from unemployment insurance and deduction for the period September 21 to October 26, 1979. That period covers a delay in the hearing of the grievance, caused by the union's request to adjourn on September 21. That request was granted on the condition that no backpay be awarded for the period caused by the delay. The grievor is to be credited with seniority from February 23, 1979. The Board - 18 - retains jurisdiction to deal with any problems arising out of the implementation of this award. While Mr. Lariviere is being reinstated on this occasion, the Board remains somewhat concerned about his attitude to authority. Although the employer may not have made sufficiently clear its expectations on this occasion, and while it is admirable to see employees who take'the initiative to make constructive suggestions to their employer, Mr. Lariviere at times comes close to crossing a fine line between constructive criticism and unwillingness to follow management's instructions. This award should not be'seen as a condonation of conduct which crosses that line and interferes with the employer's right to organize its work routines as it thinks necessary to meet its objectives,-and we hope that Mr. Lariviere will bear this in mind in the future and that his attitude towards management will improve considerably. Dated at Toronto this 12th day of December, 1979 Katherine Swinton-Vice-Chairman I concur Mary Gibb-Member I concur Harry Simon-Member