HomeMy WebLinkAbout1980-0563.Muise.82-06-21IN THF MTTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Eefore
TBE GRIEVANCE SETTLEBIENI BOARD
Between: CUPE (John hluise) Grievor
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The Crown in Right of Ontario I
(Ministry of Municipal Affairs
and Housing) Employer
Before: R.J. Roberts Vice Chairman
E. McIntyre Member
W. Evans Member
For the Grievor: W. Brown, Representative (Lot. 767)
Canadian Union of Public Employees
For the Employer: A. Tarasuk, Counsel
Central Ontario Industrial Relations
Institute . . . .
Hearings: April 2, 1952
May 12, 1982
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..)
AWARD
This is a discipline case. The Employer, The London and
District Housing Authority, disciplined the grievor, an
con-s,ite caretaker at the Authority's seniors citizen apartment
building at 30~Baseline Road, London, Ontario, by removing
him from on-site status and making a notation in his file, -
At the hearing, the Employer submitted that it had just
cause to discipline the grievor in this way because despite be-
+ng counse~llea~by~~'Employer, the grievor evidenced through
his conduct that he would persist in-entering apartments in
the buiId,ing to perform work without first obtaining the
required authorization, either verbal-iy or in writing,
from the Employer.
The Union, Local 767 of the Canadian Union of Public
Employees, made essentially two submissions on behalf of
the grievor. First, the Union submitted that,if the
Board were, to accept the evidence of the grievor, no
just cause, for, discipline existed because the grievor
did nothing to indicate that he would persist in breaking
any rules of the Employer by entering apartments without
permission. Alternatively, the Union argued that even if
the evidence of the Employer were to be accepted, it merely
showed that the griever was an over-zealous 'employee. Such
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an employee, the Union submitted, ought not to be subjected
to the severe financial penalty that the grievor was subject-
'ed to when he was removed as on-site caretaker. The Union
pointed out that this removal cost the grievor the loss of
a subsidized apartment; lead hand premium of 6Oc per hour:
on-sitapremium of 27c per'hour; and, lock-up pay of l/4
hour per shift per day. The Union submitted that in the
circumstances, the Employer did not have just cause to
c impose upon the grievor such a stiff penalty.
Upon due consideration of the evidence and argument
of the parties, we conclude that the grievance must be
dismissed. We accept the evidence of the witnesses for
the Employer that the grievor did persist in making un-
authorized entries after being counseled by the Employer.
This wasambreach of the rules and resulted in a number of
complaints from tenants. We further conclude that the
Employer had little choice but to remove the grievor from
on-site status. The evidence at the hearing indicated that ,
as a result of a number of incidents which had occurred in
which the grievor appeared to, tenants to be making unauthorized
entries into apartments, there was considerable uneasiness among
tenants regarding having the grievor as on-site caretaker.
Since the grievordidnotappeartobetaking seriouslytheEmployer's
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counseling, it seems that the Employer was forced to resolve
the situation by taking the only reasonable alternative
left open to it, i.e., removing the grievor from on-site
status.~
At the. hearing.,, there~~proved tom be some variance
regarding the particulars of events leading to the
discipline imposed upon the grievor. Given that the
events occurred sometime ago, in the period June to
September, 1980, such a variance is understandable and
is to be.expected. In making our findings of fact, we
have tended to.prefer the evidence of the Employer wherever
a conflict has arisen. We did so because there were
several witnesses for the Employer whose testimony
regarding certain disputed details seemed to coincide
closely. Further, on detail regarding a particular date, i.e.,
whether certain garbage was removed from an apartment
on Sept. 2 or 3, 1980., independent records produced at the
hearing confirmed that the date recalled by witnesses
for the Employer was the most probable date on which the
event occurred.
The facts as we find them are as follows. The senior
citizens apartment building at 30 Baseline Road in London,
is a large, lo-story high-rise building. There are several
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wings to this building which branch out like spokes from
a hub in which is located a bank of elevators. The :I
building is cared for by one on-site caretaker, who resides
in the building, and one other caretaker. 'During the
relevant period of time, the on-site car,etaker was the /
griever . The other caretaker was Mr. L. Thbrne. The grievor
was designated the lead hand and, as such, was vested with
more responsibility then Mr. Thorne.
The Employer operates a number of similiar senior
citizen residences in London. It appears from the evidence
that to a considerable extent the operations of the Employer
regarding all these buildings werecentralized. In the
maintenance area, a .Maintenance Supervisor was based in
the central offices of the Employer. The caretakers and
other field staff reported directly to him~. In turn, the
Maintenance Supervisor would issue work orders authorizing
the caretakers, etc., to perform work which was not part
of their regular, routines in the common areas of the
buildings. For example, a caretaker would require a
work order to repair a leaky faucet in a tenant's apartment
but would not require a works order to perform a regular
chore such as organizing trash.for pick-up. For most
of the relev'ant, time period, the grievor's .Maintenance
Supervisor was Mr. Pat Grehan.
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If the caretaker were required to enter a tenant's
apartment in order to make a repair, it not only was
necessary to obtain a work order but also the permission
of the tenant. If the tenant were at.home when the.repair
was made, the consent of the tenant could be
obtained verbally. If the tenant was going to
be away from his .or her apartment.when the repair was to
be made.,. the caretaker had to obtain from the tenant a
written permission slip authorizing him to enter the
apartment. These and other procedures were .made known
to all caretakers. They were embodied,at least in a
general sense, in the Rules and Regulations that the
care.takers were required to sign as a condition of
employment. The grievor signed a copy of these rules
and regulations on December 27, 1978. The legend above
his signature read, "I hereby acknowledge receipt of these
Regulations. I have read them and agree to their
application."
In spite of this, the Employer began to receive ;',
many complaints and allegations from tenants at 30 Baseline
Rd. to the effect that the grievor was entering apartments
without permission. Most of these were unsubstantiated and
tbe Employer generally considered the grievor's explanations
to be satisfactory. At the hearing, however, two such in-
cidents were substantiated. It seems th.at on June 13, 1980,
the grievor was seen by at
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least two tenants preparing to
enter apartment #519 during a period of time when its
tenan,t, Mrs. M. Ross, was known to be away in the hospital.
When one of the tenants who saw him-asked the grievor
what he was doing, reminding the grievor that Mrs. Ross was
in the hospital, the griever responded that~he had a work
order to repair some faucets in the apartment. This response
was heard not only by then tenant who questioned him but also
by a tenant who lived a few doors down the hall who was,
watering some 'flowers she kept beneath the window in the
hallway at the time ~of the incident. When Mrs. ROSS,' sister
appeared on the scene; probably -in order to check the apartment
for Mrs. Ross~, the 'grlevor did not carry through with his
original intention. After a brief conversation with Mrs. Ross'
sister, he left. /
It was shown at the.hearing that there was never a work
'order under which ~the grievor was authorized to repair a
,faucet in this apartment nor did the grievor ever receive
a permission slip from Mrs. Ross authorizing him to enter
her apartment while 'she was away. The tenants who observed
the grievor attempting.to enter Mrs. Ross'. apartment was
sufficiently disturbed by this incident to report it to
the Employer.
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A further incident of unauthorized entry, which occurred
on August 28, 1980, was substantiated in evidence at the
hearing. This incident involved apartment 8601. Apparent-
ly the tenant, Mrs. Lewis, had died and virtually all of
her belongings had been removed from the,apartment by
her‘relatives. In the early afternoon, the grievor showed
this apartment.to a prospective tenant. While showing the
apartment, he noticed that a hand-held shower head assembly
-which belonged to the deceased still was attached to the
standard shower arrangement of the apartment. He had to
explain to the prospective tenant that this did not come
with the apartment. Later in the day, the grievor found
that he had some spare time. He decided that he would go
up to apartment #601 and remove this shower ,assembly in
order to avoid any further confusion. He aid so. The
grievor brought the assembly down to the office and tagged
it with the apartment number.
The trouble was,~'the grievor did not bother to obtain
f&m his Maintenance Supervisor, a work order authorizing
the removal of this shower head. According to the Rules
and Regulations of the Employer, before the grievor went
to the apartment to remove the shower head,~ he should have
phoned his Maintenance Supervisor to receive at lwst a
verbal authorization which would have been followed in due
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course by a written work order. The grievor knew that this
was the procedure. He simply did not follow it. Because
he did not follow the procedure, the grievor set the stage
for considerable embarrassment to the Employer.
This~ embarrassment occurred as follows; After the
grievor removed the shower head -- unknown to anyone but
himself -- one of the deceased's relatives returned to
her apartment to remove the shower head'because another
relative wished to have it. When he found it gone,~ he called
the Employer to ask where it was. Because the grievor did
not call.the central office for authorization, the Maintenace
Supervisor had no idea where the shower head might be. Mr. _.
Grehan was dispatched to 30 Baseline Road in order to attempt
to locate‘ it. It was only,at this ,point that the shower head
was discovered. Ultimately, it was returned to the relatives
of the deceased.
Perhaps because this incident caused the above embarrass-
. ment to the Employer, it was decided that the grievor ought
to be called in to the central office in order to confront
him with the complaints that had been made regarding un-
authorized entry, re-acquaint him with the requirements of
the Rules and Regulations and counsel him that he must comply '
with the requirement to obtain a work order and, if necessary,
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a permission slip before entering an apartment to make a
repair or adjustment. This meeting was held on August 29,
1980 in the board room of the head office. It was chaired ,
by Mr. Walters, the Maintenance Engineer. Also in attendance
for management were Mr. ~Grehan and another Maintenance
Supervisor, Mr. Cook. The grievor was accompanied by his
Union Steward;Mr. Ron Tucker.
According to Mr. Grehan's testimony, the grievor was
very amiable and co-operative at this meeting. He attempted
to exp.lain away the complaints that had been made regarding
unauthorized entry. The attention of the meeting then was
directed toward reviewing the procedures that should be
followed with respect to work orders and permission slips.
The grievor indicated that he understood everything and.
that he agreed with the procedures.
On August 30, which was the next day, there began a
sequence of events which indicated that the grievor did
not intend to change his casual approach to compliance with
the foregoing regulations. On that day, the relatives of
deceased tenant, Mrs. O'Dwyer, who had lived in apartment
#603, were completing. the removal of her personal effects,
etc., from the apartment. That evening, while the grievor
was in the lounge of the apartment building, he was approached
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by Mrs. O'Dwyer's daughter. The latter handed him the keys
to the apartment and advised him that although they had‘
moved out all of what they were going to, there remained in
the apartment some junk and garbage which she would have
put in the garbage room but could not because the door was
locked.~ The grievor replied. to her that he would take the
keys .and Shea shouldn't worry about the, garbage. He and his
co-worker, Mr. Thorne, would take care of it when they
return to work after.~the holiday weekend.
On Monday, September 2, Mr. Grehan arrived at the
building to inspect the apartments which had been the
subject of "moveouts". He was accompanied by the grievor.
When he opened the door to 'apartment-&603 and saw that there
still were contents remaining in the apartment, including
a rolled-up rug and a lamp standard, he immediately closed
the door and locked it. He told the grievor that he was not
to go into that apartment until further notice. For sohe
reason, the grievor did not inform Mr. Grehan that Mrs..
O'Dwyer's daughter had characterized the contents as junk
and garbage and had requested that they be disposed of.
Mr. Grehan returned to the central'offices and attempted
to get into contact with Mrs. O'Dwyer's daughter. She, however,
was not available. Apparently she .and her husband had left
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for a v&cation. It was decided, that in accordance with
a procedure for such situations, it would be necessary
to move out the articles which remained in the apartment,
tag them and store them for 30 days.
OnSeptember 4, when Mr. Grehan returned to apartment
#603 to carry out this, procedure, he found that all of the
articles which had been left in the middle of the floor
had disappeared. At the hearing, it was shown that on
Sept. 3, Mr. Thorne, acting under the direction of the
grievor and with the grievor's assistance, had removed
all of the article and placed them in the garbage room.
The grievor did not possess any work order ~to do this
work. He expressly had been instructed by Mr.' Grehan, in
accordance with the procedures required by the Rules and
Regulations, not to enter the apartment. Yet, despite
this, the grievor did so.
When management found out that the grievor disposed
of the articles in. apartment #603 by virtue of making an \
unauthorized entry which not only was against regulations
butt also against express orders from his supervisor, Mr.
Grehan, it was decided that discipline was in order. an
September 22, 1980, Mr. Walters wrote a letter to the
grievor reviewing the final incident and the two incidents
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which preceded the meeting of August 29. The letter
concluded, in pertinent part:
All. the above entries violate the Landlord and
Tenant Act, the Authority 'Rules and Regulations which you signed as a condition of employment.
They have caused unreparable [sic] damage to your
reputation of honesty and integrity as an on-site
building custodian which reflects on the .integrity of the Authority. Therefore, we must advise you
that we are taking the following disciplinary action: . . . .
2. You shall be reassigned to an off-site
building custodian position at OH 15,
632 Hale Street evective October 15, 1980. The duties and schedule of work shall be
given to you October 1, 1980.
Yours truly,
G.A. Walters, Maintenance Manager.
The grievor was required to vacate his apartment in the
building by November 30, 1980. He was reassigned to off-
site 'duties in another one of the Employer's apartment
buildings. Thins arbitration followed in due course.
On the above facts, there seems to be little doubt
that then Employer had just cause to discipline the
griever., Only one day after a meeting at which the
Employer stressed the need to follow. the procedures
_c . required by-the Rules and Regulations of, the Employer,
the grievor embarked upon a course of conduct indicating
that he did not have any intention of reforming his
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previous casual attitude toward them. Moreover, this
course of conduct also reflected a similar casual
attitude toward direct orders from his supervisor which
seems to us to have bordered upon insubordination.
As- to the'level of'discipline which was imposed in
this case, there does not appear, to be any compelling
reason to dis'turb the assessment of the Employer. In
a previous case .before this Board, which involved only
one active unauthorized entry, this Board upheld the
.discharge of a caretaker who had been subject to previous
'discipline. In that case Re Arsenault and Ontario Housing
Corporation (March~22, 19771, GSB #69/76 (Beatty), the
Board said, in pertinent part:
In the result we must conclude that the grievor did in fact improperly enter the unit and dispose of
the property he discovered there. That such behaviour is, in the context of a~ Public Housing Authority, of
itself,and standing alone, to be considered as most
serious and reprehensible conduct and accordingly deservins of severe discioline sanctions. is bevond
question1 1 (i964) 14 L.A.C. 254 (Cross). Indeed, in makinc that determination we recognize that such behaviour could,
in.the proper circumstances give rise to criminal
charges. . . .
We agree with Professor Beatty that. unauthorized entry in
the context of a Public Housing Authority'must be deemed
reprehensible and deserving of se.vere disciplinary sanctions.
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In this case, the consequences of the discipline imposed
upon the grievor were, we agree, severe. Re suffered --
and continues to suffer -- a considerable financial loss.
It seams to us, however, that this discipline was warranted
and that, in effect, the grievor broughtit upon himself.
By his own actions, he indicated to the Employer that the
less severe approach it initially took toward,attempting
to induce the grievor to reform his behaviour was a total
failure. This seemed to leave the Employer with no other
alternative but to remove the griever from his on-site
position at 30 Baseline Road. The grievor, by his own
actions, demonstrated that if he wereleft in -
his on-site position he would make further unauthorized
entries. This would, apparently, only fuel further alarm
and uneasiness among the tenants.
The grievance is dismissed.. .,.
DATED at London, Ontario this 21st day o
R.J. Roberts Vice Chairman
E. McIntyre ,' !&amber
tic F----
W. Evans Uember