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HomeMy WebLinkAbout1981-0430.McCall and Arthur.82-01-18IN THE MATTER OF AN ARBITRATION ’ Under Ti-fE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEblENT BOARD Between: OPSEC: (A.J. McCall & R.K. Arthur) - And - C ievors The Crown in Right of Ontario (klinistry of Transportation and Communications) F.mployer Before: For the Crievors: For the Employer: Mrs. G. Brent Vice Chair ;?~.I Ms. S.D. Kaufman :Uember Mr. N.J. Cazzola Member tMs. L. Stevens Grievance/Classification Officer Ontario Public Service Employee I .nion ‘Mr. N.H. Pettifor Staff Relations Supervisor iMinistry of Transportation ~(1 Communications Hearing: November 23. 198 I -2- The matter before this Board concerns grievances filed by Mr. A.J. McCall and Mr. R.K. Arthur disputing the two-day suspensions given to each of them. Both of the Giievors were suspended as a result of the same incident which took place on March 11, 1981. The facts are not the subject of any substantial dispute. At all material times the Grievors were assigned to work as operators out of patrol yard no. 6 in Thunder Bay. During the summer the Grievors, and apparently all others assigned to that yard, work on other crews in the area; but from October or November to mid-April they are assigned to patrol yards to perform snow clearance and related activities. On LMarch 11. IYSI the Grievors were assigned to the night shift. On the night shift there is no member of supervision or management present, but there are two night .patrolmen who, although bargaining unit employees, are considered to be in charge of the shift. Mr. E.R. Kozy was one of the night patrolmen on March 11, 1981. The procedure followed on the night shift appears to be that the crews recognize that their prime responsibility is to plough the roads and maintain their equipment. After that is done, or if there is no ploughing to.be done, the crews will, in the absence of other instructions, do housekeeping and maintenance chores around the yard. The supervisor on the day shift will also leave instructions for other work to be done at night. On the night in question the day supervisor, Mr. Sinhara, had left a note (Exhibit 1) which read: -3- Weather Permitting If there isn’t any activities other than Servicing - Housekeeping & others. The Staff can assemble sign stands in new section of garage. Charge to 7090. Thanks 3s. All members of the night crew usually see whatever notes are left as they are left in the open near the place where the crew members sign in. On March 11, 1981, Mr. Kozy said to the crew “We’ve got sign stands to put up.” The Grievors refused to do any of the sign stand work because they said that it was carpenter work and not within their job specification duties. Mr. McCall, who was also a steward, telephoned the Union vice-president to seek his advice, and was told that the vice-president would meet with management the next day to straighten out the assignment. Mr. McCall told LMr. Kozy that the signs should be put off until the next day when the Union vice-president had clarified the situation. After the first indication that the Grievors were refusing to make up the signs, Mr. Kozy telephoned his supervisor and was told to record in the diary the names of those who would not make up signs. Mr. Kozy then followed these instructions and asked everybody who was in the lunchroom “Who’s going to make up signs and who isn’t?” The Grievors indicated that they would not, and Mr. Kozy recorded their names in the diary. The Grievors were suspended for two days by Mr. R.E. Thompson. the district engineer. who viewed the situation as one where two emp!oyees -4- had challenged the authority of the night patrolman. Neither of the Grievors has any disciplinary record; and they are both long-term employees, each having over seven years of service. The night patrolman here was in an extremely diffi~cult situation. He is a bargaining unit employee who has been given some extra responsibilities because there is no member of supervision on the night shift. He was not responsible for the origination of the direction to make signs, but it was surely Mr. Kozy who would have had to answer to his supervisor if no signs had been made on the shift. He was also powerless to decide that the sign-making should be postponed until representatives of the Union and the Employer met to discuss whether the assignment to employees in the Grievors’ classifications was proper. He was thus caught in a -situation which was not of his own making, and which he was powerless to alter. If this were a case of insubordination in the sense of a refusal to perform a valid order given by someone in authority, then one would have to agree that there was no direct order given by Mr. Kozy, assuming that he had the authority to give it. This analysis overlooks the fact that the order concerning what was to be done that night clearly originated with the day supervisor, and Mr. Kozy was merely a passive agent in the procedure of communication between the supervisor and the night crew. There was no doubt in any witness’s mind .that an assignment of work had been made by the day supervisor, and that the Grievors had refused to do the assigned work because they considered the assignment to be improper. Their refusal did not challenge IMr. Kozy’s authority, it challenged the right of the Employer to make a certain assignment to them. Under the circumstances, rather than put -5- a fellow bargaining unit employee in such a difficult position. the grievors should have followed the normal rule of “obey and grieve”. Because there was a clear refusal to perform assigned work, the Board agrees that the Crievors were insubordinate. The Grievers’ actions were not a direct challenge to .Mr. Kozy, and there is no direct or implied threat to the established procedure of running the night shift without a member of supervision on site. There is no evidence of any disruption of work on the shift or of any attempt by the Crievors to convince others to refuse to perform the work. It was, all in all? a fairly low- key incident. Taking all of this into consideration, and .also considering the otherwise excellent records of the Grievors, it seems reasonable to substitute a less harsh form of discipline. For all of the reasons set out above, the Board orders that the Grievers’ records be amended by removing therefrom all references to the two-day suspensions and substituting therefor, in each case, a written reprimand for refusing to perform assigned work. The Crievors will be compensated in full for the two days work which they lost as a result of the suspensions. The Board will remain seized of the matter for the purpose of determining compensation should the parties be unable to agree. -6- DATED at Ldndon, Ontario this 18th day of January, 1982. G. Brent, Vice Chairman “I concur” S.D. Kaufman, hIember “I cancur” N.J. Cazzola, Member las