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HomeMy WebLinkAbout1983-0532.Arabia.84-08-23IN 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 Dates: OPSEU (Salvatore Arabia) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer E. B. Jolliffe, Q.C. Vice Chairman F. D. Collom Member H. Roberts Member L. R. Rothstein, Counsel Gowling & Henderson Barristers & Solicitors J. Zarudny, Counsel Crown Law Office Civil Ministry of the Attorney General April 10 and May 8, 1984 -l- DECISION The grievance of Mr. Salvatore Arabia followed his suspension for 10 working days in July, 1983, the result of an incident on June ‘13 * The employer's case is that the griever was found resting or loitering at 3 p.m., although his 'afternoon "coffee-break" was scheduled to end at 2.45 p.m. The employer further contends that the suspension was appropriate having regard, to a lengthy record which and several loitering offences, particularly in 1983. included lateness The gr ievor's defende is that on June 13 he was obliged to perform certain duties after 2.30 p.m., so that his break was delayed by some 13 or 14 minutes. Thus it is argued on his behalf that the alleged offence of June 13 has not been proved, so that it cannot be deemed a culminating incident in a series of similar offences. Unfortunately, there are some inconsistencies and even conflicts in the evidence, but we do not think there need be findings of credibility. The essential facts, not all the facts, have been established by witnesses on both sides. These may be summarized as follows. The "Housekeeper" at the Lakehead Psychiatric Hospital, -2- Thunder Bay, is Mr. Edward Mychasiw. He supervises a cleaning staff of 52 employees, 35 full-time and 17 part-time, and is assisted by two working supervisors. The hospital is a large institution with about 700 inmates, some of whom help with cleaning duties in a modest way. The griever has worked there as a cleaner for 13 years and is familiar with the details of the work and the rules. As the first witness, Mr. Mychasiw identified Exhibit 3, a memorandum he had issued to "all staff" on February 18, 1982. Headed "Coffee Breaks and Lunch Breaks," it gave the following particulars: COFFEE BREAKS Male Staff Female Staff 9:30 to 9:45 a.m. 9:45 to 1O:OO a.m. 2:30 to 2:45 p.m. 2:30 to 2:45 p.m. LUNCH BREAKS 12:30 to 1:00 p.m. 12:OO noon to 12:30 p.m. Coffee breaks to be taken in Staff Cafeteria except for staff involved with patient work parties who can have their coffee breaks with the patients. There has been no claim by the Union in this case that the periods specified above are inconsistent in any way with the provisions of Articles 7 and 12 in the collective agreement, "Hours of Work" and "Rest Periods." Cleaners like the grievor start work at 8 a.m. and are liberated at 4.20 p.m., when they return their keys and "wash up" before leaving. i . ./i . _^ - 3- Mr. Mychasiw testified that on June 13 he left his office shortly before 3 p.m. and proceeded towards the men's wash-room (in the basement) by way of the locker-room. Hearing a noise, he entered the lounge on his right, where there are several couches. He found two cleaners in reclining positions --- but getting up as he arrived. One he identified as Mr. A. Putkonen, a Cleaner 2. According to Mr. Mychasiw, he looked at his watch: it was 3 p.m. He told Mr. Putkonen the time and said "you are abusing your coffee-break." The reply was “Sorry --- 1 did take some time. It won't happen again." Mr. Putkonen then left. The other employee in the lounge was Mr. Arabia. The witness said he addressed the griever directly, refering to the time and asking if he had anything to say. This' is denied by the ~grievor, but it really does not matter whether he was asked to explain; the previous remark had been heard by him and he knew he was in trouble. The supervisor says the grievor "looked sleepy," said nothing, merely smiled and left the room. On the other hand, the griever's version is that "he spoke to me in the same way and I said something about the time between 2.45 and 3. I didn't explain why I was there then. He didn't really give me a chance. If he'd asked me, I'd have explained. He seemed to be talking to Art rather than myself. He left before I did." Mr. Mychasiw recalls interviewing the grievor on June 14, but no one else was present, the grievor offered no explanation and he made no notes. The grievor denies that such a meeting was held. 7 4 - There is no doubt, however, that a formal meeting occurred on June 21, Mr. C.K. Temple, the Hospital Administrator, presiding. The housekeeper was examined by Assistant Administrator N.D. Guy and cross- examined by Mr. 'G. Tees, President of the Local Union, representing the grievor; .a co-worker named Nelson made a statement and the griever also spoke on his own behalf, as recorded in Exhibit 14. After a brief recess, Mr. Temple referred to the grievor's record, warned that his job was in jeopardy and imposed a lo-day suspension, which was confirmed by letter dated June 27. In cross-examination before this Board, Mr. Mychasiw conceded that employees are sometimes delayed for various reasons in taking their coffee-breaks. If the break was more than five minutes too long, he would ask for an explanation, but he did not make a practice of "timing" employees. When he learned the grievor claimed to.have been delayed by the need to get paper towels for the wash-room, he and others walked the required distance and timed the whole exercise at only three minutes and 50 seconds. He insisted the griever had given no explanation on June 13 or 14. Mr. Arthur Putkonen testified that he went on his coffee-break at 2.32 p.m., spent four or five minutes in the wash-room and locker- room, then went to the lounge, ate part of a sandwich, and before "dozing off" saw the grievor and one other man, Mr. J. Bruno, lying on i i -5- couches in the lounge. He agreed it was 3 p.m. when the supervisor arrived, but did not hear the exchange between him and the grievor. Mr. Robert ,Nelson was the first witness called by the griever's counsel. He said that on June 13 he had arrived in the wash- room at 2.32,p.m. Just after finding there~were no paper towels, the griever arrived. Mr. Nelson complained "You're on D --- this is your responsibility --- I've already checked and.you'd better get some now. 'I He wiped hands on his shirt and noticed that it was then 2.33 p.m. He then went to the canteen and when he returned about 10 minutes later there was a fresh supply of towels in the wash-room. He did not enter the lounge. He thought it would take the grievor seven or eight minutes to get supplies from the utility room in another wing of the hospital. 'Later, at the griever's request, he wrote a note about the towel inci- dent and gave it to a steward for delivery to Mr. Temple. Another cleaner, Mr. James Delben, also said there were no towels in the wash-room at about 2.35 p.m. Passing the lounge he saw Mr. Bruno sitting on a couch and Mr. Putkonen apparently asleep~ on another couch but did not see Mr. Arabia. Nor did he see Mr. Nelson. When he looked at the clock in the canteen it was 2.37 p.m.; and he left at 2.55 p.m. At coffee breaks some people often took 16 or 17 minutes instead of 15; no one had ever asked him for an explanation. He estimated that the trip to get fresh towels would take eight or nine minutes. -6- Mr. Joe Cizmar said he was an "acting supervisorl' on June 13. ..- He took his afternoon break about 2.35, and saw Mr. Delben come into the canteen two or three minutes later. He also left at 2.55. .Walking down the hall at 2.58 Arabia, Putkonen The gr i eyor, Mr. Arabia, was examined and cross-examined at he saw Mr. Mychasiw enter the lounge, but did not see or Bruno. considerable length. The explanation he gave t~his Board may be summarized as follows. Normally he works on the day shift, but sometimes on an afternoon or night shift. He confirmed the scheduled times of coffee- breaks and insisted they are often varied inan emergency or for some other reason. He did not think it would be abusing the rules to take 16 or 17 minutes instead of 15; indeed it was "usual" for employees to do so. On June 13 the grievor was assigned the cleaning area known as "D" , described in Exhibit 6 as "1st floor." He worked it alone that day, another employee having been transferred elsewhere. He reached the locker room a little after 2.30, and noticed people going into the canteen. Mr. Nelson met him "near the wash-room" complaining there were no paper towels in the dispensary. The grievor suggested getting spare towels from the pipe cabinet; Mr. Nelson said there wern't any there. At first the griever thought his friend was joking, a not unusual habit, - 7 - but in ~the wash-room he found that Mr. Nelson was right. He estimated that the talk occurred about 2.33 or 2.34. . . The grievor then went through all the steps required to obtain fresh supplies. After locking the pipe cabinet, he walked by way of the basement to the utility room in Pavilion 4. He did this at ",strolling speed," less than three miles an hour, because he had been having some foot trouble. In the utility room he took towels; paper cups and a large garbage bag for carrying the supplies. He then returned to the wash-room in the '*Kitchen and Recreation" area, opened the pipe chamber and inserted towels in the dispenser. All these steps required the unlocking and locking of doors with a variety of keys according to the established procedures. He did not look at his watch, but estimated it took between eight and 10 minutes to complete the whole exercise. If he is right, it would by that time be between 2.41 and 2.45, assuming that he began at 2.33 or 2.34. The grievor then went to the lounge, arriving --- he says --- between 2.42 and 2.45. He saw Mr. John Bruno lying down on the couch beside the door, and saw him leave about 2.55. By his watch, Mr. Mychasiw entered at 2.58. He was shocked, he said, because the super- visor had often walked in and out at five minutes to three; this time he seemed in a great hurry. The remarks made to Mr. Putkonen were heard by the grievor. His account continues: " He spoke to me the same way and I said 1 . . 5 -8- something about the time between 2.30 and 3.00. I didn't explain why,1 was there then. He didn.'t really give me a chance. If he'd asked, I'd have explained. He seemed to be talking to Art rather than myself., He left before I did." , In the corridor the grievor saw Mr. Cizmar and others waiting for the elevator. He asked what time Mr. Mychasiw had been seen entering the lounge, and Mr. Cizmar said it was at two minutes to three. The grievor added: IlHe always checks his watch daily." The grievor insists he was not interviewed by Mr. Mychasiw that day or the next day, or at any time between June 14 and Mr. Temple's hearing of June 21. Cross-examined, the grievor agreed he had been well aware he could be disciplined for over-staying a coffee-break; it had happened before. It was permissible to start late on a coffee-break, but it was an "honour system." He admitted knowing an explanation was expected when found resting at the wrong time. In the past he had explained "if asked." On other occasions, he said: "I have not been caught." The supervisor "generally speaks to me when late and calls me to the office." The grievor confirmed that on various occasions he has been (1) noticed and disciplined, or (2) noticed and warned, or (3) noticed -9 - but not warned or disciplined, or (4) not noticed by any supervisor. Others also overstayed their breaks, "it's not my job." but he never reported them because The grievor claims he told Mr. Mychasiw when caught on June 13 that it was only two minutes to three, to which there was no reply. He agreed Mr. Putkonen had been in trouble for the same reason, and "I told him I'd help him out at a hearing but not under oath. I didn't ask him to do the same for me." As for Mr. Nelson, he was a friend." We've gambled together on occasion --- late into the morning. He owes me for gambling debts but I think he's up now. I asked him to help me for the meeting of June 21 --- but I can't recall when I approached him." The grievor does not disagree with an estimate that it is 831 feet from the wash-room and back again. It would take about three minutes at three miles per hour, but the grievor said he had sore feet and could not walk at that speed. The grievor admitted he had exceeded his break time "by one minute I guess. 8, It was not explained "because he didn't give me a chance." He denied saying to Mr. Cizmar "I got caught again;" instead he had said "he just did it to me again." This was because he had been fined five days' pay in May. He had also received oral and written warnings. - 10 - Finally, the grievor testified he had health problems, for which he had once been given "a month off." He had also asked 'Mr. Mychasiw for some "leeway" because of the drowsiness caused by medication which he was still taking on June 13. Some argument arose~about whether it was proper to consider the grievor's record before making a finding on the culminating incident. In view of the griever's admissions, the point .becomes academic. This is a case in which the record is relevant in assessing the weight of the grievor's~explanation as well as the validity of the penalty imposed. Ms. Velva Roininen, Regional Personnel Administrator since 1918, was called in reply. 'She said an explanation was given on behalf of the grievor at Mr. Temple's hearing of June 21 but the grievor himself "explained nothing." 'Further, nothing was said at that meeting about the effects of medication. She produced Exhibits 15 to 19 inclusive. These indicate that the disciplinary record was as follows: (1) April 24, 1973: written warning for leaving the hospital without permission; (2) September 6, 1977: written warning for "loafing" at about 11 a.m.; (3) February 15, 1980: written warning for ignoring two counsellings and leaving assigned work area without permission; (4) October 13, 1981: written warning for ignoring "repeated counselling" and leaving work area without permission; i : .i i - 11 - (5) May 19, 1983: following a hearing conducted by Administrator C.K. Temple, fined five days' pay on the ground that grievor admitted reporting late on five days in April and May, admitted being repeatedly found loitering away from work area, admitted having received "repeated prior verbal counselling, written warnings and a reprimand for similar infractions." The reprimand, according to Ms. Roininen, was on November 8, 1982, for "repeated lateness." She said the lo-day suspension in June (recommended by her) was imposed "because all prior efforts had failed." There had been no grievance in respect of any previous discipline. Ms. Roininen told of a meeting not mentioned by the grievor. On June 15 or 16 she drafted a letter for Mr. Temple's signature and was instructed to ensure its delivery by hand. The grievor was called to her office on June 16 and she gave him the letter (signed by Mr. Temple) which is Exhibit 12, as follows: It has been brought to my attention that you were found loitering in the lounge on Monday, June 13, 1983, during your assigned working hours. In view of your record of repeated infractions, I have decided to hold a hearing on the matter in my office at 1430 hours on 'Tuesday, June 21, 1983. You are requested to appear and are entitled to be accompanied by a representative of the Cmtario Public Service Employees Union. If you do not attend, the hearing will be held in your absence. Please note that repeated loitering may result in disciplinary action up to and including dismissal from the service. - 12 - The witness said: "I think he opened the letter and read it. I don't recall him saying anything." She said a moment later she had no doubt the grievor opened the letter. Her previous information came of ~course from Mr. Michasiw. In argument for the employer, Mr. Zarudny said that the coffee-break times are really part of the collective agreement, since Article 12 provides that "the present practice for rest periods in each shift shall be maintained." In his submission an employee extending a period by 10 seconds would be violating the agreement. He suggested there was an obligation on the griever's part to explain his presence in the lounge but he made no effort to explain until the hearing of June 21. For the grievor, Ms. Rothstein submitted that the culminating incident had not been proved. Mr. Michasiw simply did not know when the grievor started his break, nor did Mr. Putkonen who was asleep for some time. Reviewing the testimony of Messrs. Nelson, Delben, Cizmar and Arabia, she said the grievor could not have reached the lounge before 2.41 p.m., and it was probably two or three minutes later. Thus he would be no more than two minutes in default at 3 p.m. To be off duty for 16 or 17 minutes was not unusual,and even the supervisor said he was not interested unless an employee was at least five minutes overdue. He claimed he did not "time" employees but apparently he was looking for the grievor on June 13. Perhaps the griever, rightly or wrongly, thought it best to say nothing by way of an explanation on June 13 and 16. - 13 - Before stating the result in this case we are bound to make two comments. The first is that 'witnesses seemed to have an extraordinary propensity for studying their watches or the clocks on the wall. They stated relevant times with remarkable precision. Perhaps / this was due to a preocupation with taking exactly 15 minutes off, no more and no less, although they say it was common practice to take 16 or 17 minutes 'or even more. The grievor admits he has often done so. The second comment is that all witnesses, after a lapse of 10 months or more, had clear memories of exact times on the afternoon of June 13, 1983. This is surprising in view of the fact that the incident received little attention until some time later. Most people would have difficulty in recalling where they were at 3 p.m. a week ago. Viewing the evidence as a whole and particularly the admissions of the grievor himself, it is clear that he overstayed his rest period on the afternoon of June 13, 1983. The culminating incident has been proved. The next question is that of the penalty imposed. Was it appropriate in all the circumstances? The Ministry of Health had translated into practice the theory of progressive discipline by issuing as part of its "Manual of Corporate Policy and Procedures," number 3-2-14, a document entitled "Staff Discipline," Exhibit 8. On July 5, 1979, the grievor signed an - 14 - "attestation'! (Exhibit 9 1 stating, among other things, that he had read and fully understood Exhibit 8, number "3-2-14 Staff Discipline." '. Exhibit 8 gives a Hospital Administrator (such as Mr. Temple) the authority to suspend, fine and dismiss for cause, after investi- gation pursuant to the requirements of the Public Service Act and Regulation 881 there under. Exhibit '8 also defines "minor offenses," which include lateness, loitering and leaving duty without permission. These are to be dealt with by the immediate supervisor "in the first or second instance" and the appropriate steps at'that time arc "informal meetings" and "verbal warnings," but "subsequent offenses result in a written re- primand..." Exhibit 8 then defines "Major Offenses," which must be dealt with by the Director (e.g. a Hospital Administrator) and can result in a fine of up to five days' pay, or suspension of up to one mohth, or even dismissal. The last example of ‘(major offenses" iS the following: "Continuous infractions --- repeated violations of any given rule or combination of rules." It is clear that the repetitive nature of the "minor infraction" on June 13 justified the Hospital Administrator's conclusion that it amounted to a "major infraction" and that a lo-day suspension - 15 - was justified. We are of the opinion that the grievor had 1' earned little from reading the manual or from a series of counsqllings, written warnings and a reprimand. Even the fine imposed on May 19 seems to have been ineffective. We have the impression that the grievor thought he was being singled out for retribution by Mr. Michasiw. If so, he was deluding himself. His record suggests indifference to the rules together with the belief that an excuse could always be found. The grievor has been warned more than once that persistence in his present course could lead to dismissal. If he wishes to hold his job, he now has every opportunity to establish a better record. For the reasons stated, thisgrievance fails .and must be dismissed. Dated at Rockwood, Ontario, this 23rd day of August, 1984. Y F. D. Collom, Mmnber EBJ:sol r\ H. Pobert.5, -