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HomeMy WebLinkAbout1982-0030.Charboneau.83-06-08IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: K. Swinton E. McVey E. A. McLean For the Grievor: Mr. G. Jones National Representative Canadian Union of Public Employees For the Employer: Mr. C. C. Riggs, Q.C. Hicks iMorley Hamilton Stewart Storie Barristers & Solicitors Hear iws: December 14,1982 April 14,1983 CUPE (Mr. Mark Charboneau) and The Crown in Right of Ontario (Workmen’s Compensation Board) Vice Chairman Member Member Gr ievor Employer . -2- This case arises out of a one-day suspension for insubordination imposed because the griever absented himself from work without leave. In addition, the grievor objects to the loss of 6% hours pay and IK days of sick credits because of the incident. The griever, Mr. Mark Charboneau, is a Rehabilitation Counselior working in the Vocational Rehabilitation Division of The Workmen’s Compensation Board in Kitchener. At the time of the incident giving rise to the grievance, that is, November 4,1981, he was also the Vice-President of CUPE, Local 1750. The absence giving rise to the disciplinary action occurred when the griever absented himself to deal with union business, as he claimed to be authorized to do by Article 17.6 of the Collective Agreement. Article 17 deals with “Leave of Absence for Union Activities”. While this grievance arises out of Article 17.6, it is worthwhile to quote other relevant parts of the article as web: 17.1 Union Representatives It is understood that employees who are Union Representatives have duties to Perform for the Employer. Such Employees who desire a leave of absence for Union bUSineSS must request such absence from their immediate supervisor as far in advance as is practical. Such absence will be granted, subject to work requirements. However, permission will not be unreasonably withheld. It is on this basis the following is agreed upon. 17.6(a) Upon written request by the Union, and provided that reasonble (sic) notice is given, the Employer shall grant leave without loss of pay or credits to employees elected as Executive Officers of the Union, for the purpose of conducting the internal business affairs of the Union. This provision is subject to the amount of time being held within reasonable limits. Seniority shall continue to accumulate during such leaves. -3- (b) The Union will advise the Manager, Staff Relations of the names and locations of such employees, immediately following their election. (c) The Employer will arrange to grant leave with pay to accommodate reasonable travel~time. (d) The Union will reimburse the Employer for the salary paid to the Executive Officers granted leave under this Section. 17.7 All requests for leave of absence permitted in these sections shall be sent to the Manager, Staff Relations. On November 2, 1981, Ed Baldwin, Staff Relations Specialist in the Division of Human Resources in Toronto, received a request for leave of absence for three members of the executive of Local 1750, Ralph Carnovale (president), Fran Robertson (past president), and Mark Charboneau. The request was made by telephone by Joanne Radford, the Executive Secretary of Local 1750. One half day of leave was requested for November 4. Despite the provision in Article 17.6 specifying a written request by the union, it was apparent from the evidence that telephone requests were frequently made, as were telephone approvals, with subsequent written confirmation of both request and approval. Therefore, the fact that the request was made by telephone has no bearing on the grievance. Mr. Baldwin testified that he expressed concern about the two day lead time, but indicated that he would see what he could do and would get back to Ms. Radford. As was his normal practice, he called the supervisors of the three employees to ask if they could be released. The supervisors of Mr. Carnovale and Ms. Robertson agreed, but the griever’s supervisor, Gerry Geldart, was not in the office. Mr. Baldwin left a message for him, stating that the union had requested leave for the griever on November 4, and that Mr. Geldart should call Mr. Baldwin. Mr. Baldwin then called . -4- Ms. Radfprd and said that the leaves for Mr. Carnovale and Ms. Robertson were approved, but he would get back to the union about the griever, as he had not been able to contact the griever’s supervisor. The request for the griever’s leave came at an inconvenient time for the employer. A one-week training programme had been scheduled for the five rehabilitation counsellors in the Kitchener office, starting November 4, 1981. This programme was described by John Walker, the Administrator of Vocational Counselling Services, North and West Areas. Mr. Walker, who is located in Toronto, was in Kitchener during the week of November 2, meeting with the staff and preparing for the training programme, which would introduce a computerized job opportunity bank designed to match injured workers who were ready to return to work with jobs in the community and across the province. Mr. Walker had arranged for employment officers to locate job opportunities that week. Worker profiles were to be prepared for system input on November 5 and 6, after a Training programme on November 4 on the system’s operation. On November 9, placement specialists from Toronto would work with counsellors in interpreting and using the data for their clients. Mr. Walker felt it was important for counsellors to participate in the training programme, so that profiles could be prepared, and placement work proceed on November 9. Mr. Walker heard of the request for the griever’s leave late on November 2. He made no effort to talk with the griever then, as they had an interview scheduled late on November 3. When they met, Mr. Walker said that he asked the griever if he could give some information about the reason for the leave, but the griever refused to discuss it. Mr. Walker then -5- said that he could not grant the leave request, as it would disrupt the training programme. The griever asked if another counsellor could train him, but Mr. Walker said no, for the other counsellors would have neither the time nor expertise to do so. Training in another centre would not be an adequate substitute. 1Mr. Walker then telephoned Mr. Geldart, while the griever was in the room, asking if Mr. Geldart objected to refusal of the request. When he said no, Mr. Walker asked him to call LMr. Baldwin. As ivlr. Baldwin had left for the day, Mr. Geldart spoke to Mr. Boyce, another Staff Relations Specialist, telling him of the need for the griever’s presence at the training programme. Mr. Boyce then called Carol Haffenden, the Chief Steward, and asked her if she knew the reason for the leave requested. She indicated that it was probably important, but nothing more. Mr. Boyce then told her that leave would not be granted because of the importance of the training session. On November 4, 1981, the griever appeared at the training session, which had started at about 9:00 a.m., at 3~05 p.m. The session ended at 4:00 or 4:30. Mr. Walker testified that the griever’s absence interfered with the timeliness of the input of his worker profiles to the system and the placement specialists’ effectiveness was hampered as a consequence. Needless to say, the griever has a very different perception of what occurred on these days. He indicated to this Board that the meeting on November 4, 1981 had beep scheduled in a hurry to accommodate the schedule of Pat O’Keefe, the Ontario Regional Director of CIJPE. The meeting was to deal with a matter ‘of grave importance to the health and -6- welfare of the local”. The local’s executive board had designated the giievor, Mr. Carnovale and Ms. Robertson to meet with Mr. O’Keefe as soon as possible. The griever felt that his presence was important, as he was the most senior executive officer in the local. Mr. Carnovale confirmed this. The griever said that he called the union office in Toronto on November 3 to see if leave had been granted. He testified that Joanne Radford said leave was approved. Ms. Radford could neither confirm nor deny this in testimony--she had no recall of any leaves having been refused, nor does she remember calling anyone in the union about the request. The griever corroborated Mr. Walker’s testimony that they met on the afternoon of November 3 and that Mr. Walker asked for an elaboration on the leave request, which the griever refused to give. He agreed that Mr. Walker said, “I don’t know if we can go along with this”. As well, he knew of the phone call to Mr. Geldart, but said that he did not hear the contents. The griever said that he left the meeting with the distinct impression that leave had been granted by the union office, and there had been no clear denial by Mr. Walker. He said that he remained at home that evening in case Mr. Geldart or Mr. Walker called for more information or, as he stated in cross-examination, if they called to “ungrant” his leave. Then on November 4, having no clear message of denial, he understood that leave had been approved. From this summary of the evidence, it is obvious that. we have a conflict in the views of what occurred on this leave request--the employer’s witnesses felt that they clearly communicated to the union and -7- the griever that leave had been denied; the griever felt that he had permission to go and, therefore, was not insubordinate by taking leave. Alternatively, the union argued that if there was insubordination, in the form of a refusal to report to work, it was justified in order to protect the union’s interest. If one looks to Article 17 of the Collective Agreement, two provisions are important. Article 17.01 introduces the other provisions, stating that it Is the basis upon which the following leave provisions are agreed upon. In that section one sees reference to two important criteria--leave of absence will be granted subject to work requirements and permission will not be unreasonably withheld. In Article 17.06, leave for conducting the internal business affairs of tne union will be granted upon reasonable notice. It is clear from these sections that the union must seek permission for a leave of absence for union activities, and the~employer must grant permission before the employee can take leave. Does the evidence, then, show that leave was granted? The important evidence here is the griever’s, for he claims that the union executive secretary indicated to him that he had been granted leave. His story is not, however, believable, when one considers the whole of the griever’s testimony. When the griever met with [Mr. Walker and was told, “1 don’t know whether we can go along with this request”, the obvious response would nave been, !‘But Human Resources has already told the union I can go.” Instead, the griever suggested alternative training arrangements, suggesting that he was bargaining in order to obtain permission. Finally, the griever stayed home that evening in anticipation -a- of a phone call from his supervisor. This again indicates that he had no permission, but hoped that it would be forthcoming. Overall, the griever’s story does not hold up: his testimony indicates that he had received no message from Ms. Radford that he could go to the meeting, and that he had no permission when he did so. Against his evidence, we have that from Mr. Walker, Mr. Baldwin and Mr. Boyce that no permission was granted. The latter also stated that he informed Carol Haffenden, the Chief Steward, to this effect. Ms. Haffenden was present at this hearing, but did not testify in contradiction of Mr. Boyce’s statement. The conclusion from all this is that both the union and the griever knew that he had not been granted leave for November 4 because of the training programme that day. Therefore, he had no right to absent himself that day. Although the union objected that proper procedures had not been followed, we cannot agree--the griever needed permission for leave, and both the union and Mr. Charboneau knew that leave was not granted. Counsel for the union also suggested that because the employer had not clearly refused leave, the griever was free to go. That is not the position suggested by the Collective Agreement language, which requires the employer to grant permission, not to deny leave. Alternatively, the union argued that the employer acted improperly in denying leave, thereby contravening the collective agreement. Even if that is true, the general rule is that the employee should obey the employer and grieve later, unless there is compeling reason not to do so, in that the grievance procedure does not provide adequate redress. The union argued -9- that this was an exceptional case, and that the griever should not be disciplined for insubordination in the circumstances. To support this position, reliance was placed on three cases: Re International Woodworkers of America Local 2-500 and Stancor Rental Ltd. (1970), 22 L.A.C. 184 (Weiler); Re United Automobile Workers Local 673 and De Havilland Aircraft of Canada Ltd. (1971), 23 L.A.C. 295 (Weatherill); Broderick and The Ministry of Natural Resources,. X1/77 (Eberts). Those cases deal with the exception to the recognized rule of “work now, grieve later”, when the employee is engaged in union activity. In Stancor, Professor Weiler allowed a grievance against dismissal for insubordination because the griever, a union official, reasonably believed he had permission to absent himself from work and because his presence was urgently needed to deal with other etnployees’ grievances. Both the Weiler and Weatherill awards indicate that an arbitration board is required to balance interests in cases where a union official disobeys an order. Weiler states that the harm to be avoided must be “quite substantial” and must outweigh the company’s interest in maintaining discipline (p. 187), while Mr. Weatherill openly suggests that a balancing of interests is involved (p. 298). In this case, the griever did not act reasonably in absenting himself without permission. If one turns to the language of Article 17, there is arguably some ambiguity in the wording of Article 17.01 and 17.06, with the employee required to request a leave from his immediate supervisor in 17.01, but the union making requests in other provisions such as 17.06. Article 17.07 states that all requests go to the Manager of Staff Relations. The union argued that 17.01 and 17.06 were mutually exclusive, and the only requirement to be met under 17.06 is reasonable notice, which the union had satisfied. Yet Article 17.01, which speaks of granting leave subject to -lO- work requirements and states that leave will not be unreasonably withheld, seems to address all of the following subsections, including Article 17.06. It is a statement of principles for the following sections, and it seems to indicate the parties’ agreement to balance employer and employee interests: the employer can refuse leave if it acts reasonably because of work requirements. The term “unreasonably” indicates that a relevant consideration, in assessing whether leave should be granted, would be the urgency of the union’s business weighed against the employer’s work concerns. Here, the employer had an important training programme planned, at which the griever’s attendance was necessary. Alternative training arrangements were unsatisfactory. Weighed against this was an “urgent” union meeting, the nature of which the griever would not convey to Mr. Walker. One can understand the union’s concern for the privacy of its affairs, yet the griever might- well have disclosed some further information, without all the details, to indicate the importance of his presence at the‘ meeting to Mr. Walker. Hi refusal to do so left the employer with nothing to weigh against its important work interest. In the circumstances, we cannot conclude that permission for leave was unreasonably denied by the employer, and, therefore, the employer was not in contravention of the collective agreement. Nor can we agree that the griever comes within the exception to the “work now, grieve later” rule. He had no permission to take leave, as he knew. While the griever’s presence at the O’Keefe meeting was of importance to the union, there were two other members of the executive able to attend, one of whom was well experienced in the local’s affairs. - 11 - The griever’s presence might have been a welcome addition, but there is no evidence to indicate that the union’s interest would have been inadequately served and members badly harmed because of his absence. Moreover, the employer had an important training programme at which his presence was needed. This is in contrast to the Stancor and De Havilland cases mentioned above. In the circumstances, the griever acted improperly in leaving work without permission. For these reasons, the grievance is dismissed. DATED at Toronto, Ontario, this 8th day of June, 1983. K. Swinton, Vice Chairman “E . McVev” E. McVey, Member “E. A. McLean” E. A. McLean, Member 7:3600 7:1300 Ich