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HomeMy WebLinkAbout1982-0585.Frangipane.83-09-15IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: CUPE, Local 767 (0: Frangipane) Grievor and The Crown in Right of Ontario (Ministry of Municipal Affairs &.,Housing) Employer E. E. Palmer, Q.C. Chairman L. Robbins Member F. T. Collict Member T. Edwards Representative Canadian Union of Public Employees A. R. Rae Manager, Staff Relations Section Human Resources Branch Ministry of Municipal Affairs and Housing July 7, 1983 -2- DECISION The present arbitration arises out of a grievance filed by Mr. D. Frangipane on 12 November 1982, alleging he was unjustly suspended for two days on 9 and 10 of November 1982. This matter was not settled during the arbitration procedure and so the present arbitration was necessitated, a hearing in relation to which took place in Toronto, Ontario, on 7 July 1983. At that time the parties were given an opportunity to present evidence and argument. No question arose concerning either the jurisdiction of this Board or its composition. In the instant case, the facts which underline the Employer's action towards Mr. Frangipane commenced on 22 October 1982, a Friday, and continued over the next two days. Basically, their claim was that the grievor, by his actions at that time, had failed to carry out a work order given to him by the Employer in circumstances which exposed him to discipline. In this regard, the basic testimony was given by Mr. E. Fleming, a Senior Caretaker, who was the grievor's immediate superior. The gist of Mr. Fleming's testimony was as follows. Thus, he stated that at approximately 3:30 p.m. on Friday, October 22nd. he had visited the premises operated by the Employer at 470 Dundas St. He had gone at that time to the room in the basement where garbage was gathered and looked at the compacter in use there. Briefly, according to Mr. Fleming, this compacter was not in working order. Thus, the "throat" of this was taken off and certain garbage -3- remained in it. All other aspects of garbage, however, were cleaned up at that point. In short, the location in question, aside from the breakdown of the compacter, was in a situation which would be described as normal, in the sense that such types of breakdown normally would occur. Following this, it would appear that Mr. Fleming returned to a nearby building where the various Caretakers from the Employer's operations met at the end of the day in a particular lunchroom. At this time, which was approximately 4:25 p.m., he was approached by the grievor who told him that: "under no circumstances would he empty the compacter at 470 Dundas St." over the following weekend. Mr. Fleming stated that he would not be working on the weekend and so he told the grievor to "do the best he could". .Mr . Fleming testified that this statement was made in the presence of the total work force and all overheard the views expressed by the grievor. Some- what surprisingly, Mr. Fleming had no explanation as to why he responded as he did when he claimed that he knew that there were no unusual circumstances at 470 Dundas St. In any event, Mr. Fleming did not work over the weekend and next returned to work on the following Monday. While in the same lunchroom as above at the opening of the shift, he stated that the Chairman of the Health and Safety Committee, Mr. D. S. Mammoliti, told everyone in the lunchroom that due to the condition of the compacter room at 270 Dundas St., no one should enter that area. Mr. Fleming stated he then called for the attention of the -4- employees there and spoke to Mr. Mammoliti, telling him that he was not in a position to issue orders of this nature. He stated Mr. Mammoliti agreed with this and further agreed to go with Mr. Fleming to the compacter area, which was only some 200 yards away, and examine the situation himself. Mr. Fleming stated he then left the lunchroom ahead of Mr. Mammoliti, who was still dressing for work, and went to the compacter room in question and he stated that the conditions were pretty much the same as they were every Monday morning, "as there was garbage there from the previous Thursday." Parenthetically, it might be noted that this is somewhat at odds with his earlier testimony that the garbage, aside from that in the throat of the compacter, had been cleared out on the Friday afternoon. He did indicate that there was a certain amount of stench to the garbage; but in his view this was no more odoriferous than would normally be the case. Mr. Fleming did state, however, that the garbage shute was plugged up to the level between the second and first floors. He stated that he considered the situation in this regard somewhat dangerous as fires could occur and therefore, without waiting for Mr. Mammoliti, he began to clean up the situation himself, such taking him some 20,minutes and using 8 garbage bags to do so. It might be pointed outthat he further stated at the time that there was a garbage crew there which was doing the normal Monday morning pick up and that they made no complaints regarding the smell. He did state that Mr. Mammoliti arrived at about the time he finished the work. Again, it might be noted that no explanation was tendered why Mr. Mammoliti took.so long to reach the scene. In any event, Mr. Fleming indicated that following this he referred the incident to his superiors and the instant discipline was subsequently imposed upon the grievor. The testimony of the grievor was, on many key points, contrary to that of Mr. Fleming. Thus, it was the testimony of Mr. Frangipane that the conditions at the location in question were intolerable. Without expanding on this, it should be noted that Mr. Frangipane indicated that he was informed of these on the morning of October 22nd. He was told at that time the compacter had not been working for some two weeks and that the shute was plugged. Apparently, Mr. Fera, who was working at the location, informed him of this and asked him to tell Mr. Fleming. Mr. Frangipane indicated he did talk to Mr. Fleming on Friday morning during the coffee break and asked him to have somebody fix the machine. Apparently, accord- ing to Mr. Frangipane, there was a brief discussion at this time. Again, he indicated he talked to Mr. Fleming again at about 2:00 p.m. on the Friday afternoon to see if anybody had been there to fix the compacter. Mr. Frangipane stated that thereafter he did not see Mr. Fleming on that day. Mr. Frangipane testified that on the Saturday he came to work and was unable to take out the garbage due to the vile conditions which then existed. Without dilating on these, it would seem, according to Mr. Frangipane, that on two occasions he attempted to contact his superiors by telephone with respect to these c-- -6 - conditions - a written record of at least one of these calls was presented at the hearing: and also called in a number of employees for their advice and to show them the conditions which existed. It should also be noted that Mr. Frangipane indicated that there was no material available, such as masks or germicides,to make it possible for him to carry out this work. The situation was essentially the same on Sunday. Mr. Frangipane also testified that when he came to work on Monday , he saw Mr. Fleming at approximately 7:30 a.m. and he said he spoke to him about the conditions. Subsequently, he saw Mr. Fleming go to 470 Uundas Street, carrying a gallon of a certain solution, which Er. Frangipane assumed was germicide. Mr. Frangipane testified that he subsequently was disciplined in this matter. A number of other witnesses were called. It is unnecessary to go over their testimony in any detail. Certain aspects of their testimony, however, might be noted. Thus, the Union called Mr. V. Galati, who testified that the conditions at the location were similar to those expressed by Mr. Frangipane. Thus, he indicated he would have been unable to do this work due to the situation which existed. Similarly, Mr. M. Visconti, the Metro Toronto Chairman of the Union, indicated that he had a similar view of what occurred,as did a Mr. M. Giorgio and Mr. V. Apa. r--P--- Finally, it should be noted that, in reply, the Employer called Mr. J. Danchuk, another Senior Caretaker, who supported the testimony of Mr. Fleming that the compacter had been emptied on the Friday at approximately 3:30 p.m. Similarly, he testified that he recalled the exchange between the grievor and Mr. Fleming laterthat afternoon at which Mr. Fleming told the grievor to "try to do his best." Again, he stated he did not respond to the claim of the grievor at this time. Looking at the foregoing, it is clear that the present issue is a factual one and, regrettably, this is not a case where the difference between the parties is merely one of preception. Clearly, either the grievor and the supporting witnesses are lying to the Board or Mr. Fleming and Mr. Danchuk are. Given this view and the claim against the grievor, then, the issue in this matter is really one of deciding whether you accept the version of the facts put forward by the Union or that by the Employer. Obviously, if one accepts the view of Mr. Fleming that the situation was a normal one for Caretakers, it would follow that the grievor not only has lied to this Board but has failed to carry out the normal responsibilities of his job. In these circumstances, it could hardly be argued that the penalty imposed by the Employer was in- correct. On the other hand, if one accepts the views put forward by Union witnesses, the opposite is the case. After listening to representations of both parties and considering the evidence in this case, it is our view that, on -8- the balance of probabilities, the view of the evidence expressed by the grievor and his supporting witnesses is the more likely in the circumstances. Thus, looked at in an affirmative way, the testimony of Mr. Frangipane and the other Union witnesses is consistent. Thus, it would seem that the grievor raised the issue of the .conditionof the compacter room with Mr. Fleming on Friday; called senior supervision on at least one occasion on Saturday: and brought the matter to the attention of the Union. While it might be that the grievor had misjudged the situation, it would seem on the facts of this case that it would be highly unlikely that the alternate version of Mr. Fleming would be correct. Thus, to accept Mr. Fleming's version of what had occurred, onewouldhave to conclude that for no reason at all Mr. Frangipane approached him on Friday, told him he would not work in an area which Mr. Fleming knew to be in a normal condition: that Mr. Fleming (and Mr. Danchuk) did not mention this to the grievor: that Mr. Frangipane attempted to contact senior supervision to have a job cleaned up that did not need it: and that he brought this matter to the attention of other members of the Union. In the opinion of the Board in this case, one can only conclude that the most reasonable view of these events is that put forward by the grievor. Consequently, this grievance succeeds and the appropriate relief should be given to the grievor. Should the parties be unable to settle this matter, the instant Board retains jurisdiction to deal with any question of compensation. DATED at London, Ontario, this 15th day of September, 1983. E. E. Palmer, Q.C. Vice Chairman L. Robbins Member addendum) F. T. Co.ilict 7: 3600 3: 5100 Re: File 585/82 This Board Member is in concurrence with the award in this case. The subject grievance should succeed. However, this conclusion is reached through a different process of reasoning than as expressed in the majority award. At the outset it should be stated that it is this Member's position that the Union's allegation of a violation of the Health and Safety provisions of the Collective Agreement has neither substance nor bearing on this case. In fact, as stated by witnesses of both parties, garbage is garbage; and it must be dealt with, sometimes under "smelly" conditions, and sometimes under conditions requiring additional equipment. However, the issue in this case is a very simple one. It is agreed that Grievor Frangipane did not perform his job assignment of removing garbage from the compactor at 470 Dundas St. on his work shifts of October 23 and 24, 1982. Was there sufficient reason to justify his failure to perform his job assignment; and if not, was the disciplinary action taken by the Employer appropriate under the circumstances? There is a conflict of testimony in this case and it is unfortunate that no reports or notes were prepared at the time the incident occurred approximately nine months earlier. Nevertheless, it appears to be common ground between the parties that, 1. the Grievor complained about the mechanical breakdown of the compactor on Friday, October 22, 1982 and requested that it should be repaired; 2. the Grievor informed his Supervisor, Mr. Fleming, that he could not "stick his hands inside the compactor to remove the garbage because it is too "smelly""; 3. the griever stated that his Supervisor told him to "....do what you can do...": or as expressed in the testimony of the Supervisor, Mr. Fleming, II... since I would not be there on the weekend, he should do the best he could..." Very simply, it would appear that Mr. Frangipane did the best he could, under the circumstances as he saw them. He contacted the Central Maintenance depot for the purposes of obtaining assistance on October 23, 1983. He requested a solution of germicide; and he also asked for the opinions of a number of fellow employees, including a Union representative, concerning the alleged intolerable condition in the compactor area. Left to his own devices, therefore, the Grievor made a decision which, in the view of this Member, satisfied the last instructions given to him by his Supervisor on the prior Friday. In Mr. Frangipane's view he did the best he could. . . . . . 2 -2- Supervisor Fleming's testimony was that around 4:25 p.m. in the lunch room on October 22, 1982, the Griever approached him at his table and specifically stated in front of fellow employees that under no circumstances would he empty the compactor of garbage at 470 Dundas St. Presented with this position, the Supervisor could have given a specific instruction to the effect that the Grievor will do the job as required: and, therefore, have no question in the mindof the Grievor as to his Supervisor's instructions and expectations. He did not do this. The Supervisor's actual response apparently acknow- ledged the condition in the garbage room and was such as to give to the Grievor the discretion to "...do what you can do...". When faced with this set of circumstances the Grievor made a decision which, presumably,was influenced by his concern for his health, the frightful odour, presence of maggotts, flies, etc. His decision was to not remove the garbage from the compactor. The Grievor, Mr. Frangipane, does have a prior disciplinary record which, under oath, he could not remember. He had been suspended in the recent past and had received letters of reprimand, the last one as recently as August of 1982. In dealing with the Grievor, then, it would seem reasonable that his challenging comment on October 22, 1982 to the effect that he would not empty the compactor, might have been met with a more directive and specific response from his Supervisor. This, however, did not occur. In view of all of the circumstances of this case, it is the position of this Member that the grievance should succeed and appropriate relief should be accorded to the Grievor.