Loading...
HomeMy WebLinkAbout1983-0701.Poulin.84-08-17IN THE MATTER OF AN Under THE CROWN EMPLOYEES COLLEC :TIVE BARGAINING ACT Between: Befor e: THE GRIEVANCE SET TLECIENT BOARD Before: For the Grievor: For the Employer: Hearing Date: OLBEU ( ARBITRATION G. Poulin) Grievor And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer R. J. Roberts F. Taylor F. T. Collict Vice Chairman Member Member M. Levinson, Counsel Koskie &. Minsky Barristers & Solicitors R. J. Drmaj, Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors May 4, I984 2. DECISION In this arbitration the grievor grieves a three day suspension for insubordination. For reasons which follow, the grievance is allowed in part. The discipline is reduced to a one day suspension. The events~ leading to the present arbitration took place in the parking lot of an L.C.B.O. store in Ottawa, Ontario. It seems that this store was one of the highest volume outlets in the province. For this reason, there were 19 permanent employees and a temporary staff of about approximately 5-6 employees. Despite the high volume of the store, parking was limited. In the parking lot surrounding the store there were less than 20 parking spaces. In order to prevent parking from becoming even more severely limited, the management of the store arranged for employees to be permitted to park their cars in a parking lot of a 'local church. This arrangement was made known to every employee, including the grievor, upon their joining the staff. They were advised that it was a rule of the store that they must not park their cars in the store's parking lot. They must, instead, park at the church. The only employees who were not required to observe this rule were the persons occupying the positions of Manager and Bookkeeper. 3 At the time of the incident leading to his suspension, the grievor was a Clerk III at the store. Although he was a high-seniority employee, having joined the L.C.B.O. in November 1964,. the grievor was relatively new to this location. He ;was transferred there in June, 1983. In all of his long career, the grievor maintained an exemplary disciplinary record. From 1964, no discipline whatever had been recorded in his personnel file. The evidence at the hearing left little doubt that when he joined the staff of this particular store, the grievor. encountered difficulty in adjusting to its no-parking rule. Despite having had the rule explained to him on his first day at work, the grievor parked his car in the lot on the following day. When the grievor again parked his car in the lot on his third day of work at the store, the Assistant Manager, Mr. Lamirande, reviewed the no-parking rule with him and told him to move this car. The grievor tried to put Mr. Lamirande off, telling he would do it later. He only moved the car when Mr. Lamirande threatened to discipline him if he did not. A short time later, the grievor, who was contemplating moving into new living quarters, asked Mr. Lamirande about the availability of boxes at the store. According to Mr. Lamirande's testimony, the grievor said, "If I ever need r 4. boxes can I pick them up? I replied, yes, if you check with me first because we don't always have boxes, and get my permission." (Apparently, permission was required of all employees getting boxes for two reasons. First, boxes were not always available. Secondly, permission was required for the employee to bring his car into the parking lot area, where the loading ramp of the store was located.) In early September, 1983, the Manager and one of two Assistant Managers were off work for a considerable period of time. This left the management of the store in the hands of the remaining Assistant Manager, Mr. Lamirande and the Bookkeeper, Mr. A. Pauze. The position of Acting Manager was passed back and forth between these two individuals during this period of time. On Saturday, September 10, 1983, it was Mr. Pauze's turn to be Acting Manager. As was their custom, all of the employees who were to work on the day shift on this Saturday gathered outside of the front of the store at about 8:45 a.m. Mr. Pause stated in his evidence that usually they all would enter the store together at 5 minutes to 9, when the Acting Manager would open the door. At about 10 minutes to 9, the Fievor drove his car into the entrance of the parking lot. He then backed his car r 5. into the area of the loading dock at the rear of the store. He got out of his car and began walking across the parking lot toward the group of employees. Although the evidence was not consiste~nt as to precisely what happened next, the preponderance of the evidence indicated that when Mr. Pauze saw the grievor's car enter the parking lot he began striding across the lot in the direction of the car. Initially, because he still was too far away for the grievor to hear him, Mr. Pause vigorously waived his arm at the grievor in a manner which could only be taken to indicate that he should get his car off the lot. As he drew within earshot of the grievor, Mr. Pause began to yell at him to get his car off the lot. The grievor did not turn back toward his car. He kept walking toward Mr. Pauze. The two met approximately three-quarters of the way into the parking lot. This was about 120 feet away from 'the group of employees gathered in front of the store. To say the least, their discussion was animated. Mr. Pause continued shouting and pointing with his arm to emphasize his order to remove the car. The grievor began to argue back. Matters became more heated. Finally, the grievor pushed Mr. Pauze to the side, as if to get him out of his Gay. He then returned to his car and moved it from the lot. 6. Several of the employees who were standing near the front entrance of the store saw the grievor argue with and then push Mr. Pause in this manner. Perhaps not surprisingly, neither the testimony of Mr. Pause nor the grievor precisely coincided with the above facts, as we have found them. In his testimony, Mr. Pauze depicted himself as calm and collected. He suggested that in his discussion with the grievor he merely told him in a normal tone of voice that he had to move his car, and he did not persist in gesturing with his hands because there was no need. It was the grievor, he said, who was shouting and gesturing. In his testimony, the grievor suggested that just the opposite occurred. The grievor said that Mr. Pauze "[tlold me to move my damned car from the parking lot.~ He was pointing at the car and then the road. I tried to explain to him that I wanted to get some boxes but he didn't want to listen. He kept going with his hands saying 'move that damned car from the parking lot'. . . . I accidentally touched him on the chest when I tried to explain to him about the boxes. . . . I could not explain to him so I told him to 'go jerk yourself' and I left." The grievor added on cross-examination that the push was "just a slight little touch." He said thatthere was no heated argument from him and he usednoabusive 7. I Our findings of fact were not based upon either of these versions of events. It was abundantly clear from the evidence of a number of other employees who observed the encounter between Mr. Pause and the grievor that neither was calm and collected. As he strode toward the grievor, Mr. Pause was gesturing and shouting. When he and the grievor met, each shouted and gestured at the other. The grievor did use abusive language toward Mr. Pause. Little else could be concluded from the nature of the epithet that the grievor himself admitted he hurled at Mr. Pause. The grievor did push Mr. Pause before he complied with the instruction to move his car, and this push was more than a slight touchi There is no doubt that upon the above facts, there was cause to discipline. In spite of the fact that he finally complied with the order to move the car, the grievor engaged the Acting Manager, Mr. Pauze, in a vociferous and animated argument which climaxed in his pushing Mr. Pauze, before he did so. All of this took place in front of a number of the grievor's co-workers. The grievor's actions went far beyond mere insolence due to a momentary flare-up of temper. He was insubordinate, and this behaviour warranted imposition of discipline. language. He added, "Its just that I asked to get some boxes and he didn't want to, listen." a. There' was some argument made that the grievor had reason to believe that he had permission to bring his car onto the lot so that he could place therein a number of boxes during his break. The facts simply did not bear out this argument. It seemed to be clear that the grievor never requested and never was given this kind of permission. He merely mentioned the possibility of obtaining boxes to Mr. Lamirande, and never followed up with a specific request. Given his prior encounter with Mr. Lamirande regarding parking on the lot, the grievor had every reason to believe that he did not have such permission, and he never should have brought his car onto the lot in the first place. The question of cause for the severity of discipline that was imposed is more troubling to this Board. It was claimed on behalf of the L.C.B.O. that the fact that the grievor had maintained a clean disciplinary record for almost 20 years prior to this incident was taken into account in its decision to impose a three day suspension. Perhaps it was, but there was no,evidence to the effect that the existence of provocation, in the form of Mr. Pauze's agitated gestures and shouts in front of the grievor's co-workers while striding toward the grievor, likewise was taken into account. In fact, it seemed as if the penalty was assessed primarily on the basis of Mr. Pause's version of events, which had him acting in a calm and collected manner throughout. 9. Considering this factor in combination with all of the other factors bearing upon severity of discipline, we conclude that a three day suspension was too harsh a penalty to impose. A more appropriate disciplinary response would have been a one day suspension. This is still a severe response, retaining as it does the "sting" of suspension. It adequately reflects the gravity of the misconduct, the grievor's seniority, his lack of any prior disciplinary record, and the element of provocation that did exist. The grievance is allowed to the extent that a one day suspension is substituted for the three day suspension that originally was imposed upon the grievor. The grievor is entitled to be reimbursed for all wages and benefits that were lost by virtue of being required to serve a three day suspension. We will retain jurisdiction pending implementation of the terms of this Award. DATED AT London, Ontario this 17th day of August, 1984. F. Taylor, Member (PARTIAL DISSENT ATTACHED) F.T. Collict, Member Re: File #701/83 (G. Poulin) This Member is in agreement with the findings of this award, with the exception of modification of the penalty. The circumstances of the case would indicate that a three-day penalty was not at all unreasonable. In fact, had it not been for the element of provocation by Mr. Pause’s approach to the grievor, it is probable that a penalty of more than three days might have been assessed. Grievor Poulin was in violation of a specific and necessary rule of the LCBO at the subject LCBO Ottawa store #140. a) Grievor Poulin understood the rule; b) The rule is reasonable because there are fewer than 20 parking spaces at Store #140 and there are approximately 19 full-time employees and a temporary staff of 5 to 6 employees; c) The rule is well known to those who testified (including the grievor); d) The rule is enforced and grievor Poulin had been informed specifically and personally that it would be enforced, even to the point where he came very close to a written disciplinary contact concerning the same issue of parking approximately three months earlier, shortly after he had been transferred to Store #140; e) At the first wave from Mr. Pauz6, grievor Poulin could have returned to his car and could have removed it from the lot. He did not do this. f) Grievor Poulin knew that Mr. Pa& was the Manager of the store on September 10, 1983. Rather than responding to the wave to remove his car from the lot, he continued to approach Mr. Pause to explain his purpose in being there. g) Both Mr. Pauze and grievor Poulin appeared to deal with this situation in quite animated fashion with voices raised and hands and arms waving. As stated in the majority award at page 7, however, “The grievor did push Mr. Pause before he complied with the instruction to move his car, and this push was more than a slight touch. ” . . . . . . . . . . . . . . . . . . 2 I Re: File #701/83 Page Two h) If there was provocation in this case by the approach used by Mr. Paz&, it was minimal; and there was no need forthe very animated and physical response by grievor Poulin who obviously recognized that he was in violation of the LCBO rule. This case involves an act of insubordination in the presence of the griever’s fellow employees, the use of abusive language directed specifically to the acting manager (“go jerk yourself”), and an unwarranted “push” or physical contact which was observed by and testified to by witnesses. Mr. Pat& further testified that the grievor stated to him, “fuck you!“, although this statement was denied by the grievor. To even consider some mitigation of the penalty in this case, there surely should be some indication that Mr. Poulin recognizes some degree of fault on his part as related to the subject incident. A review of the evidence, however, indicates that grievor Poulin contended that he erred not ,at all on September 10, 1983. Although admitting that he required permission to both park on the lot and to pick up boxes, he clearly was, and still is, of the opinion that his approach was entirely acceptable on the date in question. This Member holds the view that, based upon the evidence and testimony, grievor Poulin would do the same thing tomorrow! His testimony was that he had done nothing wrong and that no rule had been broken. Grievor Poulin has a good work record and approximately 20 years of service with the LCBO. Had it been otherwise, it is probable that the extent of disciplinary action would have been greater. It is the view of this Member that the grievor’s action in this case warranted discipline and that the three-day suspension assessed by Management should not have been overturned. !