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Home My WebLink About1983-0287.Hooper.83-09-27IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OLBEU (P. Hooper) and The Crown in Right of Ontario (Liquor Control Board of Ontario) P.M. Draper Vice Chairman S. Schachter Member W.A. Lobraico :Member For the Crievor: A.M. Heisey, Counsel Blake, Cassels J( Graydon .For the Employer: R.J. Drmaj, Counsel Hicks Morley Hamilton Stewart & Storie Hearing: AUQJSI II, 1983 Crievor Employer -2- DECLSION By memorandum dated February 14, 1983, the Employer initiated a new procedure for recording and reporting breakage to become effective March 1, 1983. We are concerned only with the introduction of a new form, Form LCB-608, to be used where three or more bottles are broken. The form is to contain an explanation of the breakage (in practice provided by the employee and written by the foreman) and is to be signed by both. It is a part of the Employer’s inventory control measur.es and has no disciplinary connotation. The Crievor, Philip Hooper, ls a fork-lift truck operator, classified Warehouseman 4. He has been employed by the Employer since .April, 1975, and has worked at the Kipling warehouse since 1977. On <March 7, 1983, he had a spill, which he reported to his foreman. When asked to sign a completed LCB-608 form a short time later, he refused. J. Bowser, Supervisor,. Kipling warehouse, the senior manager at that location, by letter of the same date, notified the Griever that his continued failure to sign the form “may result in disciplinary action” and by letter of the following day repeated that notice and demanded a written statement from the Grievor explaining his action. The Grievor rep!ied on March 10th claiming not to have been aware of the new procedure. A letter dated March 29, 1983, and signed by D.F. Wilcox, Assistant General Manager, Warehousing and Distribution, notified the Griever of his suspension without pay for one day, to be served on April 6th, as a result of the March 7th incident. The Grievof grieved the suspension on April 15th. : -3- On April 5th the Grievor had another spill and.again refused to sign a completed LCB-608 form. As with the earlier incident, he received letters signed by Bowser, this time dated April 5th and April 7th. His reply (incorrectly dated April 6th) claimed infringement of his “personal and constitutional rights”. On April 11th the Griever was called to the warehouse office where he found W. Anderson, OLBEU Zone Representative and employed as a Warehouseman 4 at Kipling; G. DeLuca, Acting Assistant Supervisor (normally General Foreman); and L. Holt, Acting .General Foreman. He was told by DeLuca that if he now signed the form he had refused to sign on April 5th (the form had beenkept in DeLuca’s office) no discipline would be imposed. With that assurance and on Anderson’s advice, he s&tied. Bowser was informed of the April 11th settlement but whether or not he took any action as a result is not known to us. A letter dated April 19, 1983, and signed by Wilcox, notified the Grievor of his suspension without pay for three days, to be served on April 26th, 27th and 28th, as a result of the April 5th incident. The Griever grieved the suspension on May 16th. As to the March 7th incident, it is admitted for the Griever, and we so find, that he committed a disciplinable offence in refusing to sign a Form LCB-608. There remains the question whether or not the penalty imposed should be modified. -4- The Grievor has some eight years of service. Nd disciplinary record has been cited. Although we are satisfied that the Crievor had notice of the new procedure at some time prior to his refusal to sign, that refusal occurred less than one week after it had come into force and when the purpose and effect of the form had not yet been adequately communicated to employees. There was no altercation and no disruption of work. The Crievor appears to have acted without discussion or consultation with anyone. While we acknowledge the necessity of securing compliance by employees with properly instituted rules and regulations, there is no showing here of special need to bring home to the Grievor, or to other employees, the importance of the new procedure by means of an exemplary penalty to the Crievor. We do not find in the Grievor’s refusal a calculated challenge to managerial authority or an intention to obstruct the operation of the new procedure. There is no evidence of empioyee resistance to the introduction of the new procedure or (except for one quickly resolved instance) of other employee refusals to sign the forms. Breakages requiring the use of Form LCB-608 take place at i<ipling up to twenty times dairy without any refusals to sign resulting. We have concluded that, in all the circumstances present here, the Griever’s offence does not warrant the penalty of suspension. Accordingly, it is hereby ordered that all reference to the one-day suspension of the Grievor arising from the March 7th incident be deleted from the Employer’s records; that the wages and benefits lost by the Griever as a result of that suspension be restored to him; and that a -5- written reprimand in respect of the said incident be issued to the Grievor and placed in the Employer’s records. As to the April 5th incident, this second, identical offence by the Griever clearly warranted a more severe penalty than that appropriate to the earlier incident. But before the penalty decided upon by the Employer had been imposed, the April 11th meeting of DeLuca and Holt . with Anderson and the Grievor intervened. In the result, the Grievor was disciplined after he had signed the form. Counsel to the Employer argues taht the Griever’s April 5th refusal to sign the form was not cured by the signing on April 11th and remained a disciplinable offence. Assuming, for the moment, the validity of the settlement reached, it is our view that the Employer, by forgoing disciplinary action, must be taken to have effectively nullified the offence itself. Counsel argues further that because Anderson knew that no one at Kipling had authority to discipline employees and that DeLuca had no role in the Employer’s disciplinary process, he also either knew, or ought to have known, that DeLuca had no authority to settle the matter. DeLuca, as a general foreman, is not a member of the bargaining unit and on the date in question was Acting Assistant Supervisor and in charge of Kipling. He initiated the discussion of April 11th. The .position in which he had been placed by the Employer gave grounds for the presumption that he was clothed with authority to prevent disciplinary action against the Griever on - 6- condition that the form was signed. In our opinion, given those facts, it was not unreasonable for Anderson to take DeLuca at his word and to accept what was, on its face, a mutually beneficial resolution of the matter. There is the additional consideration that it was not established in evidence that DeLuca, who did not testify, did not, in fact, have the requisite authority for the action he took, and that his action has not been explicitly repudiated before the Board. We have concluded that the Employer is bound by the settlement of the April 5th incident reached on April 11th and that there did not exist thereafter an offence for which the Grievor could be disciplined. Accordingly, it is hereby ordered that all reference to the three-day suspension of the Griever arising from the April 5th incident be deleted from the Employer’s records and that the wages and benefits Jest by the Grievor as a result of that suspension be restored to him. When the Board convened at IO:00 a.m. on August Ilth, counsel to the Grievor requested an adjournment of the hearing. ~The Crievor, having mistakenly attended at another address, was not present and it was not known when he would arrive. In addition, William Anderson, who was to testify on behalf of the Griever, was present but would have to leave t0 attend a relative’s funeral taking place at :I:00 a.m. Counsel to the Employer objected, arguing that there were no proper grounds for granting an adjournment. % -7- The Board, after consideration, denied the request. The Crievor had received formal notice of the hearing and had otherwise been informed of the address of the Board’s offices. Anderson had attended \ under the Board’s subpoena and was at counsel’s disposal. ’ The Board further ruled that the hearing must go on (it being a disciplinary matter the Employer would lead off) or the case must be dismissed. Counsel elected to continue and the hearing proceeded. DATED at Toronto this 27th day of September, 1983. P.M. Draper Vice Chairman 1 - S. Schachter Member . .4- . W.A. Lobraico Member 7:1200 7:3610 7:3612 7:4400 I