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HomeMy WebLinkAbout1985-1581.Barr.86-08-27I Between IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OBLEU (A.D. Parr) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Before: G.J. Brandt Vice-Chairman I.J. Thomson Membe'r A.G. Stapleton Member Griever Employer For the Griever: Martin Levinson Counsel Koskie & Minsky Barristers & Solicitors For the Employer: M. Patrick Moran Counsel Hearing: Hicks Morley Hamilton Stewart Storie Barristers & Solicitors June 18, 1986 2 DECISION This is a grievance of David Barr protesting his discharge from employment with the LCBO effective February 8,1986. At the outset of the proceedifrgs counsel for the griever asked the Board to restrict the hearing to a consideration of the culminating incident itself and that it not hear any evidence respecting the griever’s disciplinary record unless and until it found that the griever had .&gaged in conduct which warranted some discipline. It was argued that, In the event that the Board were to find such conduct to exist, it could then re-convene to hear evidence as to the record and submissions as to penalty. In the event that it were to fiad that there was no blameworthy conduct of the grievor then the record would be irrelevant and the grievance should be allowed. In making this submission counsel relied on 3 cases before this Board all of which involved tbe’same parties to the instant matter. In R&f&m 469182 (Kennedy) the Board followed this procedure. The Board there stated: It is quite true that, because of a bad record, a relatively minor incident may have disproportionately serious disciplinary consequences. That record, however, cannot be used to turn an incident that would not d itself justify some form of disc&We into such a disciplinary incident. It is therefore our view that the interest of the parties are better served by a consideration of the specific culminating incident itself and only once it is established that such an incident took place, is it necessary to go on to receive evidence as to the past 3 disciplinary record of the Griever.” This procedure has also been followed by this Board la King.8 13/84 (Verity) and !&!hy& 0447185 (Draper). In each of these cases the Board referred to and applied Robertson. Although it is not made explicit ln Robertson it would appear that one of the concerns that the Board has is that it ought not to be influenced in its assessment of the evidence respecting the culminating Incident by a potentially prejudicial record which may disclose earlier conduct of a similar kind. While we recognize that this manner of proceeding is unusual in a discharge case it appears clear that the Board has chosen to conduct itself, at least ln discharge cases involving the LCBO and the OBLEU. in this fashion. We are not disposed to depart from that procedure in this case. Consequently, this award wlll deal only with the matter of the alleged culminating incident. The allaation against the griever is that on January 10, 1986 he was found to be “under the influence while at work. More specifically it is alleged that he consumed an unspecified number of “miniature” bottles of Seagrams V.O. whiskey during his shift on that day. The griever, who is an Assistant Store Manager at Store ?4S6 located at 345 Bloor St. E and who has 17 l/2 years of seniority, denies that he consumed the whiskey and that he was “under the idlUefW. However, he does admit to having consumed 2 bottles of beer at his supper break which he took between 3: 15 and 4:00 p.m. on that day. Mr. Martin Femandes, the Supervisor of District 22 ( ln which store # 4S6 is located) testified on behalf of the Employer. He stated that he arrived at the store at approximately 8:00 p.m. on January 10th. met the griever in the customer area of the store and. upon talking to him for a couple of minutes, formed the impression that he was under the influence. He stated 4 that he could smell alcohol, that the grlevor’s eyes were glazed and blood shot, that his speech was slurred and this his balance was not normal. He said nothing to the griever concerning his 9uspicions. Rather he went into an office and the griever followed him in where Mr. Fernandes asked him if he had been drlnklng. The griever admitted that he had had a couple of beers with his dinner. Fernandes searched some desk drawers and a filing cabinet for bottles but found none. The griever returned to the performance of his duties. Fernandes continued his search in the warehouse area at the back of the store and noticed some empty “miniatures” of Seagrams V.O. !pins on top of a garbage bag. The figure as to the number of bottles found varies from between 3 and 6 such bottles. He described them as still ‘wet’ by which he meant that some of the contents were still ln or on the outside of the bottles. He then reached inside the garbage bag and four&some more empty bottles~ of the same brand. In all he found, on this search, a total of 8 such bottles. In continuing his investigation he discovered a broken package of Seagrams V.O. miniatures with 2 full bottles remaining in the package. Miniatures come in packages of 10. The normal practice with respect to the display of this product is to break open the packageand place all 10 bottles in a rack at the cash register for individual sale to customers. He stated that it would be unusual to break open a package, put only 8 of the 10 bottles&m the shelf, and return the opened package with 2 full bottles to the warehouse area Mr. Fernandes then called the grievor to the back of the store and asked him if it was normal procedure in that store to open a package of 10, take 8 out and return 2 bottles to the back. The grievor said this was possible but agreed that it was not normal procedure. In his evidence before -- the Board the griever stated that there are occasions when employees “‘face up” the shelves of miniatures, that is. replenish the stock of miniatures by taking however many bottles are necessary from a package to fill the shelves and returning the remainder to the back. However, on the day in question he did not see anyone facing up the shelves where the miniatures are kept. At this point in the investigation Mr. E. Asquini. the Store Manager, arrived on the scene. Mr. Fernandes asked the griever if he had any knowledge of the empty bottles and the grievor said that he had nothing to do with them. Another employee, Mr. G. Harvey, a clerk who was at the cash register, was called to the back and questioned in the same manner. He too dented any knowledge of the miniatures although admitted to having had 2 beers at dinner with the grievor. At this point Mr. Fernandes realized that Mr. Harvey was also “heavily under the influence” . Fernandes and Asquini then searched the rest of the garbage bags and discovered another 2 1 empty miniature bottles. They along with the grievor returned to the office and Fernandes told the grievor that he thought he had been drinking and asked him if he would take a breathalyzer test. The grievor said that he would but when Fernandes tried to arrange for this to be done by the police he was advised that they were not willing to do one. Consequently, no breathalyzer test was done. At 8.45 p.m. Fernandes informed both Harvey and the griever that he was relieving them of duty. They left the premises and Fernandes remained behind and prepared a letter for both Harvey and the grievor formally advising them that they had been relieved from duty because they were found to be under the influence and that disciplinary action might be taken against them. He prepared a report for Mr. F. B. Rankin. the Director of Store 6 OperaUonS,inwhlchhereviewedtheinddent, xpressed~the option that each of the men had consumed more than the 2 drinks at dinner, and recommended that the griever be terminated and that Harvey be suspended. This recommendation was accepted. Harvey did not grieve his suspension However, the griever did and the matter is now before us. Mr. Fernandes was cross examined as to the extent of the griever’s impairment. He admitted that he had made no mention of the griever’s balance being affected in his report to Mr. Rankin and that at no time on January 10 did he ever see the griever stumble or fall. Nor could he recall what words the griever had slurred or precisely the way in which the griever’s speech was affected by his consumption of alcohol. Mr. Fernandes based his conclusion that the grievor was under the influence in part on his memory of how the griever had behaved at social functions,. golf tournaments and retirement parties, when he had been drinking. He admitted, however, that those had occured a number of years ago. The griever admitted that he is an alcoholic and that he was institutionalized, on the request of the LCRO. from December 1983 to January 1984. under a program operated by the Alcoholism Research Foundation. He stated that since he has left that program he has not drunk any spirits although he continues to drink beer “moderatehf’, no more than 2 beers at a time. He has also participated in the after care program run by the ARF and has missed’oniy one meeting since January of 1984. His evidence as to the events of January 10.1986 substantially confirmed that of Mr. Femandes except in that Fernandes did not ask him if he had been drinking until after he and Asquini had discovered the remaining 2 1 bottles of whiskey in the garbage bags. He stated that he and Harvey had gone to dinner together, that each had had 2 bottles of beer and 7 had returned to the store at 4.00 p.m. ‘He attended to his duties but did not notice either the empty botUes on the top of the garbage bag or the fact that Harvey was impaired. He also stated that Asquini left around 4.15 p.m. and told the griever at that time that Fernandes would be visiting the store later that day. Femandes. in his evidence, did not know how Asquini could have known that since he, Femandes, had not told him he would be visiting the store. Asquinwas not called by either party to testtfy either as to this piece of evidence or as to the griever’s condition The hoard was informed that he has been discharged by the LCEtO and that he currently faces a numberof fraud charges relating to events which occured in conmxtion with his employment. . The griever denied consuming the contents of the miniatures and maintained that he was not under the influence of alcohol. He denied that his speech was slurred or that he had any problems with his balance. As for the ‘glazed’ appearance of his eyes he suggested that this may have been due to the fact that at the time he had a cataract condition in his right eye (which was operated on on January 2s. 19861 or to the fact that he wears bi-focal glasses. As for the bloodshot condition of his eyes he suggested that, due to the fact that he was ‘nearly blind in his rfght eye’, his left eye may have been bloodshot through eye strain. As further evidence in support of his claim that he was not impaired the griever stated that, after he was relieved from his duties, he went home and, while there, conducted a telephone conversation in which he arranged for a part time employee to come in to work the following morning. He accomplished this without difficulty. -- 8 His evidence In this respect was corroborated by his wife who also stated that he was not impaired when he arrived home and that, while there have been difficulties in the past with his drinking, he has had it under control since January of 1984 when he completed the program run by the Alcoholism Research Foundation. Counsel for the Employer submitted that the evidence of Fernandes as to the griever’s condition established that he was under the influence of alcohol, not necessarily that he was ‘*falling down drunk” but simply that his abilities were impaired. In that regard counsel also noted that the griever. as Assistant Store Manager, failed to notice either the empty bottles lieing on the garbage bag or the fact that Harvey himself was impaired. It artis suggested that this indicated that the griever was not in full possession of his faculties. Indeed, it was argued that, if the griever knew-that Fernandes was arrtiing that nighi he would, were he in possession of his f&xlties. take even greater pains to make sure that nothing improper was done. The Board was also asked to view sceptically the griever’s claim that, as.an admitted alcoholic. he can amtlnue to consume beer without effect. It was suggested that his admitted consumption of beer establishes that he has not yet come to terms with his ala#hOlism and that, on this occasion, he in the company of Harvey and perhaps one or both of the part time staff who were working that night had all joined in the consumption of the whiskey The Union attacked the evidence of Fernandes as constituting proof of the griever’s condition. First, it was noted that Fernandes had not, until the hearing, made any reference to the grievor being off balance and that he was unable to recall in any detail how the griever’s speech was slurred. Seamdty, as to the “glassy” and bloodshot condition of the griever’s eyes it .-- 9 was noted that the griever offered a credible explanation as to how his eyes might appear that way without his being under the influence of alcohol. Thirdly, Femandes’ own response to the griever ‘s alleged impairment was questioned. Even if it is accepted, contrary to the griever’s evidence, that Femandes raised the question of his drinking shortly after he arrived at the store, the fact is that he did nothing about it for 4J minutes until he had discovered the empty “miniatures”. It was then that he concluded that the griever had consumed some whiskey. It was suggested that this conduct indicates that the griever was not seriously impaired and that what Femandes did, once he discovered the empty bottles. was to assume that since the griever was an alcoholic he must have at least been a party to the consumption of the whiskey. In the submission of the Union the key piece of testimony was that of the griever to the effect that he was informed some time around 425 p.m. that Femandes would be arriving at the store sometime later that evening. Given the fact that the griever had had some problems with alcohol and that his disciplinary reaxd put him in some jeopardy were he to be discovered on the job in an intoxicated condition. it was argued that the griever would be foolish in the extreme to engage in drinking on the premises when he knew that his store would be visited later that evening. We are of the opinion that this grievance should succeed. The evidence as to the griever’s condition does not persuade us that he was impaired at the time. Leaving aside the griever’s denial. Fernandes’ evidence itself was not compelling as to his condition. Moreover the griever’s wife, who we accept to have some interest in the outcome, testified that when he arrived hdme shortly after being relieved from work, the griever was not impaired. And then there is the griever’s evidence itself. _-- We found him to have given his evidence in a straightforward manner and we do not regard that evidence to have been shaken on cross-examination. We agree with counsel for the Union when he suggests that the knowledge of the grievor as to the later arrival of Femandes is a significant fact to take into account in piecing together what happened on the night ia question. Mr. Fernandes stated that he did not know how Asquini could have known that he was arriving since he hadn’t told him. Thus, Femandes was in no position to contradict directly the evidence of the grievot that this is what he was told. However. Asquini was in such a position and the Employer did not call him to testify either as to this matter or as to the condition of the grieve. We recognize that, in the circumstances of Asquini’s own discharge &d subsequently criminal c&rges being laid against him, the Employer might have been reluctant ti caII him as a witness. The problem is not insuperable, however. He could have been called and, if he turned out to be a hostile witness to the Employer, counsel could have applied for leave to cross-examine his own witness. In any event it is not the griever who should have to suffer the consequences that might flow from the fact that there are practical difficulties in the way of an Employer calling certain evidence to contradict that given by the griever. Secondly. the Employer could have called either Harvey or the two temporary employees who were in the premises on the night in question to testify as to the griever’s condition. Again we are not unaware of the difficulties involved in calling bargaining unit witnesses to testify against fellow employees. However, where the issue is one of discharge, and where the griever gives credible evidence which contradicts that of the Employer, ~ the failure of the Employer to call evidence which wh assist the Board in 11 resolving the amfllct cannot be excused on the basis that the calIing of such evidence creates practical “labour relations” difficulties. Obviously, some of the staff were drinking the “miaiature” bottles on the night in question. Indeed Mr. Harvey, by accepting the disc&line imposed admits, to that. As to the number of bottles consumed on the griever’s shift the evidence would establish that at least 3 and ProbabIy 8 were consumed. Moreoverwe are satisfied that those 8 bottles came from the part package that Fernandes discovered. As to the remaining 2 1 found in the tied up garbage bag the evidence does not indicate how long they could have been there. However, having regard to aII of the evidence, we are unable to conclude that the griever participated in the drink&. Consequently, in so far as the Employer has not established that the griever was “under the Influence’ as alleged, the grievance must be allowed and the griever reinstated in employment without loss of pay or seniority. The Board remains seised with respect to the question of determining the amount of compensation, if any, owed to the griever by reason of this decision. Dated at London, Ontario this 27th day af August, 1986. A. G. Stapleton Member