Loading...
HomeMy WebLinkAbout1983-0241.McPherson.83-09-13241/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Don McPherson1 Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: J. w. Samuels Vice Chairman K. O'Neil Member W. A. Lobraico Member For the Grievor: E'. Baker General Secretary Ontario Liquor Boards Employees' Union For the Employer: B. Bowlby Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearing: August 30, 1983 The grievor is a Clerk 3, and now works in Store 242 in Toronto. He received a five-day suspension for insubordination for an incident which occurred on March 1, 1983, and he grieves that there was no just cause for the discipline. On March 1, the grievor was called into the store office by the Manager, Mr. J. Santoloce, and was asked to clean the windows in the store. This involved about four outside windows, roughly six feet by four feet each, two doors and two office windows. No ladder was required, but the Manager wanted the job done with bucket and squeegee. The job would take about twenty minutes. This was the first time an employee had been asked to do the task. Previously, the store hired a professional window cleaning service, but the proprietor had died several weeks before the day in question. It is not clear whether this meeting between Mr. Santoloce and the grievor took place before or after the lunch break, but it is agreed that it occurred during the hours that the public was admitted to the store. The grievor refused to do the windows, and did not do the job. There is some disagreement on what words were used by both gentlemen. Mr. Santoloce recalls asking first "Don, if you don't mind, would you do the windows for me." From his demea,nor as a witness, it is obvious that Mr. Santoloce is a soft-spoken and very polite individual, and this language seems typical of what he might say in asking that a job be done. He recalls the grievor saying he wanted window cleaners' wages for the work, and that he (Mr. Santoloce) responded that the job was being done.on Board time and the Board was paying him to work. Then the grievor gave a small laugh and said "I don't do windows for nobody". When the grievor started out of the office, the Manager called him back and said "Don, please do the windows". To which the grievor replied again "I don't do windows", and left the office. / i-F I -c?- . <. i -3- The grievor recalled being asked to do the windows, and responding that he didn't mind taking the Windex and a cloth and doing some of this work, but he wasn't prepared to use the bucket and squeegee because he might get water on his clothes and look messy. He suggests that he did not get a "direct order" to do the windows. He says that he found the request odd at first because the Manager mentioned the window cleaner being dead. in our view, there is no doubt that the grievor knew the Manager was asking him to do the windows as an "order". That is, Mr. Santoloce was not giving the grievor a choice of doing the windows or not doing them. It was clearly the Manager's intention that the grievor do the windows. And the grievor was insubordinate inrefusing to do the job. Following the discussion, the Manager typed up the following memorandum and handed it to the grievor: Dear Sir; The purpose of this letter is to advise you that you are in a state of suspension. You were asked to wash the store widows -(sic) and refused. - Within three (3) calendar days from receipt of this letter, you are required to submit a written statement, by registered mail, to the Director of Store Operations in which you are to explain the matter which has resulted in this action. On March 3, the grievor sent in his explanation of his conduct to the Director of Store Operations: I have been with the L.C.B.O. for over 20 years and I have never washed the store windows before. I do not think it is part of my job description. I also believe that it is contrary to the "Letter of Agreement", can't (sic) on page 64 of the collective agreement. RE: Store Mai?Gnance Duties. It is for these reasons that I refused Mr. Santoloce's request. The Letter of Agreement to which the grievor referred reads: LETTER DF~~AGBEEMEWT Store Maintenance Duties This will confirm the Board's agreement with respect to the performance of certain store maintenance duties as follows: The Board agrees it is not a job requirement for store employees to perform the following duties during normal working hours: -the stripping of waxed floors and waxing resulting therefrom -the washing of walls and painting In our view, this Letter of Agreement does not cover the washing of windows and has no relevance to our case. The instruction given by Mr. Santoloce was reasonable in the circumstances and should have been carried out by the grievor. With respect to the penalty imposed, we think that it is reasonable in all the circumstances. The grievor does not have a good record with the Board. In 1967, he was disciplined for insubordination. In 1976, he was terminated for poor work performance, but was reinstated on the basis of a settlement reached between the parties. He remained with a lengthy suspension for the time'he was off work. He was only partly compensated for this in the settlement. In 1982, he was suspended for five days for consuming beer during his afternoon break in a local licenced restaurant, after having been warned by his Manager and Assistant Manager not to do this several months previously. His last three annual appraisals show that he does not do his job satisfactorily in all respects--he has problems with the office procedures. In all, the grievor was manifestly insubordinate, and he merits discipline in order to n e L-7. ,? F -5- ., bring home clearly to him that he must follow his Manager's instructions. If he feels that the order is not valid, he should perform the work and grieve later. This is in line with the general arbitral jurisprudence--see, for example, the Grievance Settlement Board’s decision in Cousins, 446/81. For these reasons, the grievance is dismissed. Done at London, Ontario, this (3K day of VLs 1g83. ~"I dissent" .(see aftach~ed) K. O&Neil, Member W.A. Lobraico, Member 7: 3600 7: 3610 7: 3612 7: 3620 EXHIBITS 1. Grievance Form 2. Discipline letter, March 21, 1983 3. Letter, March 1, 1983 4. Letter of March 22, 1967 5. Letter of October 7, 1976 6. Letter of May 12, 1976 7. Letter of July 8, 1982 8. Letter of March 3, 1983 9. Annual Appraisal, 1980 10. Idem, 1981 11, Idem, 1982 1 find I must disagree with the conclusion that there was insubordination in this case and that the penalty meted out was reasonable in the circumstances. To conclude that there was insubordination here would be to blur unduly the requirement in law that there be a clear order understood by the grievor. Re Hunter Rose and Graphic Arts International 27 L.A.C. (2d) 338. The employer here has simply not discharged the onus of proving this element of insubordination. They have shown that the griever's supervisor asked him to wash the windows, under circumstances in which the supervisor testified that he thought the grievor might have thought he was joking, although it is clear that ~the supervisor was not joking in his own mind. Mr. Santoloce's evidence is clear that he wanted the windows cleaned but that he presented it in a request format. Early in his evidence he refers to repeating the "question of doing the windows". When Mr. MacPherson left his office Santoloce made no attempt to clarify the matter with MacPherson, although one should think tnat he* would be under some obligation tc clarify if in his own mind he thought of the matter as a question rather than as an order. Santoloce's statement of his initial request was "Don, if you don't mind, would you do the windows for me?" This question certainly leaves it open to another to think that if he does mind, he doesn't have ~to do the windows. Further on, in cross -examination as well, Mr. Santoloce answers the question, "Do you feel he thought you were, joking?" with the response, "He may have thought that." Communication being a two-way proposition, even in the workplace, it would have taken more from Mr. Santoloce to make this into a clear order understood by the grievor. In re-examination, Mr. Santoloce answered the question "When you asked MacPherson, were you making an offer or giving an order?" with the words, "Sort of making an offer 11 because he didn't like ordering people around. Especially because Mr. Santoloce is-a soft-spoken and polite individual, if his demeanour at the hearing is typical of his manner in the workplace, it is clear how the griever could have been left with the impression that this was not an order, but "sort of an offer" which he was at liberty to decline. There is absolutely no reason to believe that if Mr. Santoloce had said, "Don, you must realize that I am telling you to wash the windows, and that if you refuse I will have to take further action", that he would have declined. MacPherson's evidence bears this out. He testified that he did not feel that Santoloce had given him an order, but that he had been asked. He thought it was kind of a joke, since there had been a window cleaner who had always done the job, and Santoloce had made a reference to his decease, which the grievor incorrectly thought was a joke. To the question, "You were aware he was serious?" the grievor replied, "Not really. He didn't say anything more to me afterwards. He didn't come after me or anything." In the decision in Hunter Rose, supra, p. 345, the Board says: ?i-T5 - 9 - "This order cannot have been considered to have been a clear order because the initial request . . . appears to have been more in the nature of a plea with the,grievor than an order. . . . In such circumstances, a firm order which was more than just a question or request for help is required." It is very important to realize that'the formulation in this case, as in others, is that the order must be clear 2nd understood by the grievor. The subjective state of the supervisor, unless clearly communicated to the grievor, will not suffice. In this case, the supervisor was left with the impression that the grievor might have thought he was joking. Surely, this will not stand up to the test of an offense which has at its roots flouting of authority. If the authority is not clearly ,communicated, an employee's response to it will not amount to insubordination. On the question of penalty, it is inappropriate in my opinion to consider the discipline in 1967 because it is stale. The discipline in 1982, was not for insubordination according and to the record,/the fact that the grievor may have trouble with office procedures certainly should not bear on the facts at hand. I would have allowed the grievance and compensated the grievor for'his lost pay. Kathleen G. / O'Neil