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HomeMy WebLinkAbout1986-0514.Pehike.dateunknownmm GRIEVANCES SETTLEMENT BOARD Between: Before: For the Grievor: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SET,TLEMENT BOARD For the Employer: Hearings: OPSEU (Linda Pehlke) and The Crown in Right of Ontario (Ministry of the Solicitor General) . EFi~c K. Slone Vice Chairman I. Freedman ~ Member P. Camp Member Elizabeth J. Shilton-Lennon COUIlSe 1 C,avalluzzo,~~Hayes and Lennon Barristers and Solicitors Ms. Anne McChesney Staff Relations Officer Staff Relations Branch Human Resources Secretariat May 13, 1987 June 17, 1987 August 28, 1987 514166 DECISION The Grievor is a Civilian Radio Dispatcher 2, ("CRD 2") working for the Goderich detachment of the Ontario Provincial Police. Her grievance is stated as follows: ' I grieve that the evaluation received by me for the period of April 1985 to May 1986 is unjustified and unwarranted, and the quarterly assessments are attempted harassment and intimidation because of my Union involvement. SETTLEMENT DESIRED: That this appraisal be rewritten to my satisfaction and removal of quarterly assessments." The Board heard two full days of evidence. It would seem appropriate in the circumstances of this case, to recite some of that evidence. The Grievor has been a member of the public service since 1974. In April of 1979, she joined the Goderich detachment of the O.P.P. as a CRD 2. The CRD 2's and CRD 3's are the only civilians working in the detachment. The CRD's perform a variety of duties in an atmosphere that can occasionally be highly pressurized. The Grievor herself likened it to work as an air traffic controller. The dispatcher is in charge of answering the telephones and taking down the information reported by members of the public. It is her job to dispatch officers to the scenes of occurrences, as well as to dispatch other types of emergency services such as ambulances, tow-trucks, fire trucks and the like. The CPD is also responsible for operating the C.P.I.C. computer terminal, which gives access to a large data base of information on suspects. It is the CRD's primary function to assist police officers while on duty, and look out for the safety of the officers. The Grievor went into great detail in describing her various duties, which she described as diverse and challenging. The Grievor clearly enjoys her work, and enjoys a collegial relationship with most of the officers with whom she works. The Grievor impressed us as a bright and gregarious person by nature. She has considerable personal charm. It is easy to see how she could hold her own very well in a male stronghold. The evidence shows that she was well liked and experienced no interpersonal problems between the years 1979 and 1985. During those years, the Grievor was evaluated at least annually. Those evaluations were generally positiVe, although at one point, between 1982 and 1984, there were some - 3 - concerns expressed by her superiors. The principal complaint was that the Grievor lacked confidence when answering queries from members of the public on the telephone. She was criticized for passing these queries on to the officer in charge, rather than dealing with the situation independently. From the appraisals filed with us in evidence, it appears that she took the criticism to heart and improved her performance in that area, to the point where it was no longer perceived to be a problem. In February of 1985, the Grievor was elected Union steward. She had not previously been active in the union. The Grievor took her Union responsibilities very seriously. She immediately began to express herself on one particular subject that had evidently been bothering her for some time. This concerned the assigning of O.P.P. officers to operate the radio when there was a shortage of regular staff, instead of giving overtime opportunities to the civilian staff. The Grievor began to discuss this issue as well as other working conditions issues with other Union stewards. This gave the Grievor the confidence to begin to raise these issues with her detachment. In about April 1985, the Grievor attempted to convince her acting detachment commander that the use of uniformed officers on the radio was contrary to the department's own policy. However, the informal approach did not produce any results, and the Grievor decided to utilise the grievance procedure. She filed a series of eight grievances, relating to eight separate instances when the Grievor claimed she had been denied an opportunity to work overtime. On February 25th, 1986, the matter came before the Grievance Settlement Board, which dismissed a preliminary objection raised by the employer on jurisdictional grounds. We were advised that this decision is now before the Divisional Court upon an Application for Judicial Review. The substantive issue raised by these grievances 'remains in limbo. While utilising the grievance procedure to dramatise the matter, the Grievor also took the opportunity to speak to other individuals at various levels of the O.P.P. She also spoke to an executive assistant of her local MPP, in the hope of obtaining some intervention from the political sphere. She even spoke to O.P.P. Commissioner Archie Ferguson, who is a very senior officer at the level of a Deputy Minister. The Grievor was quite proud of the fact that she and "Archie" addressed each other on a first-name basis. These various activities by the Grievor have ruffled many feathers. In the summer of 1985, with these events taking place, first Sergeant Middlebrook and then acting Superintendent MacMartin paid the Grievor separate visits. Sergeant Middlebrook at the time was acting inspector for the - 5 - Mount Forest district headquarters, which was the headquarters for Goderich and six other detachments. As described by the Grievor, the visits by Middlebrook and MacMartin were not pleasant. Both were apparently very angry with the Grievor's mini-crusade. Probably they resented the Grievor's fearless disregard of the command structure. MacMartin sat the Grievor down in a room alone with him, and interrogated her in an unpleasant way. His attitude was hostile. He wanted to impress clearly on the Grievor that he was her boss and she was to answer to him and only him. The interrogation only ended when the Grievor insisted that she wanted a Union staff representative present, which prompted MacMartin to order her out of the office. The Grievor testified that from this time on, she began to feel isolated from the rest of the staff. At or about this time, she was also denied a chosen vacation day, which she believed was in retaliation for her Union activism. She filed a grievance which was quickly resolved. In December 1985, the Grievor filed two complaints under Section 32 of the Crown Employees Collective Bargaining A*, complaining of unfair labour practices. It is not necessary to go into details of the matters complained of. Both complaints were ultimately settled, and a memorandum of settlement was entered into with the assistance of Mr. . ‘I .,. 7:; - 6 - Waisglass as a mediator. Under the settlement, the employer agreed to cooperate more whole-heartedly in various meetings where labour relations issues could be resolved. It was also part of a settlement that the Grievor agreed to withdraw a charge of sexual harassment against a particular O.P.P. officer. The settlement, which has the force of an award of the Ontario Public Service Labour Relations Tribunal, was signed the 21st day of April, 1986. Some two weeks later, on May 6th, 1986, the evaluation complained of was issued by Corporal Vessey, acting detachment commander. (We presume it was in preliminary draft form some days earlier.) The contents of Vessey's evaluation were concurred in by Acting Inspector Middlebrook. The evaluation in question is three pages long, much longer than any of the evaluations prepared in previous years. It is by no means entirely negative. It compliments the Grievor on her appearance, typing skills and general demeanor. However, under the heading of "Concerns", Corporal Vessey writes the following: "I have three areas of concern in relation to Ms. PEHLKE's performance at this time. 1. It has come to light that during the midnight shift particularly during the hours of 0500-0700 when no officers are on duty, Ms. PHELKE lies down to rest during working hours. - 7 - In preparing this evaluation it was brought to Ms. PEHLKE's attention that during these hours the office is still open. It was pointed out that this is on duty time and the practice does not present a professional image to the public. She agreed to terminate this practice. 2. Concern has been expressed in regards to the manner in which Ms. PEHLKE deals with the public on the telephone. Firstly, she has a very casual and carefree manner of speaking. This attitude projects itself to the public particularly on the telephone. As a result certain members of the public became resentful and tend to feel that as Public Servants we are not looking after their best interests first. Secondly, on occasion Ms. PEHLKE has failed to obtain full particulars of an occurrence for the officer being dispatched. This can cause a dangerous situation for the officer, either causing him to rush to an occurrence that is not emergent, or having him enter a hazardous situation without having all of the available details. These concerns were also discussed with Ms. PHELKE and a number of resolutions explored. Firstly, it is recommended that the District Telecommunications Supervisor talk to Ms. PEHLKE and discuss proper telephone etiquette and occurrence detail procedure. Secondly, the C.R.D. III at this Detachment will be assigned to work with Ms. PEHLKE as often as possible. He will be instructed to work with her in relation to these two areas of weakness. Thirdly, Ms. PEHLKE suggested and I concur that she be allowed to accompany officers on patrol. She feels that this would assist her in dispatching units as she would have a better knowledge of the area. I also feel that this would assist Ms. PHELKE in understanding what the officers are involved in and would assist her in doing a better job. 3. It has been observed that Ms. PEHLKE does not always adhere to Force policy when - a - operating the two-way radio. At times she often does not identify the car number of the unit she wishes to speak to. This can cause confusion and tie up already crowded airways unnecessarily. This situation was brought to her attention and Ms. PHELKE has agreed to apply herself to this area of her job in an attempt to improve." In the Recommendations section, Corporal Vessey recommended that the Grievor be evaluated quarterly, in order for her performance to be monitored in the areas of concern. While monitoring can sometimes be a constructive process, in this case the Grievor regards it as an intrusion, and something that is totally unwarranted. Prior to its release, the evaluation in rough form was shown to the Grievor. Some of the incidents which Corporal Vessey had in mind were discussed with the Grievor. Some of the incidents upon which he was basing his evaluation were clearly not discussed with the Grievor, and she seemed genuinely surprised to hear about these alleged incidents for the first time at the hearing before this Board. In dealing with the propriety of the performance appraisal, we must consider both the factual accuracy of the evaluation, as well as the manner in which the conclusions were reached. Section 18(2)(b) of the Crown Employees Collective Bargaining Act permits an employee to grieve that - 9 - he has been appraised contrary to the governing principles and standards. In this case, the governing principles and standards are drawn from a document which was described to US as Part 3 of the Standing Orders for the Ontario Provincial Police. Article 301.2 of this document reads as follows: "the Personnel Evaluation Program is designed to provide management and each employee with a report containing an objective factual evaluation of the employee's work performance and conduct, and where applicable his appearance and equipment maintenance as observed by his supervisor during the course of his duties. It is essential that this report be an objective factual evaluation since it may be used when assessing an employee's promotability. An atmosphere of continuous open interaction between the supervisor and employee is necessary to ensure that the evaluation comes as no surprise to the employee: the employee should know where he stands before the report is written." (emphasis mine) The evaluation must therefore be objective, factual and come as no surprise to the employee. The question of whether or not the evaluation is "factual" does not present much problem. It is more difficult to define what is meant by "objective". Counsel for the employer submitted that in assessing the objectivity of the evaluation, we should take into account the fact that parts of the evaluation are positive and therefore the overall impression created by the evaluation is balanced. We do not agree that this consideration is appropriate. It is our view that in considering whether or not the evaluation is ,. ‘?’ - 10 - objective, we ought to be looking at whether Corporal Vessey adequately freed himself from the subjective elements of personal likes and dislikes, or bias. This quality of objectivity is important in that it recognizes that the evaluation should say much about the person being evaluated, and little or nothing about the person performing the evaluation. To the extent that the evaluator's subjective impressions come through, to that extent the evaluation loses its objectivity. Of course, the evaluator is only human and perfect objectivity can only be strived for. A certain degree of subjectivity must be tolerated. In assessing the objectivity of the evaluation, we begin by noting that Corporal Vessey took over as acting detachment commander about two months before the subject evaluation. Prior to that time he had been a shift supervisor, and was the Grievor's immediate supervisor at the detachment. But for this change of command, the Grievor's evaluation would have been conducted by Sergeant Donatis. There had been a lot of friction between the Grievor and Sergeant Donatis over the previous year. It is perhaps fortunate for the Grievor that Sergeant Donatis did not get the opportunity to perform the evaluation. While we will never know for sure, objectivity could have become a major bone of contention had Sergeant Donatis done the evaluation. - 11 - Prior to undertaking the evaluation of the Grievor, Corporal Vessey consulted with Sergeant Donatis. They discussed a particular incident which Sergeant Donatis was upset about, but which Corporal Vessey chose not to mention in the evaluation. It is clear that Corporal Vessey had been a bystander to all of the friction that was being generated between the Grievor and other staff at the detachment, although in fairness to him it does not appear that he was personally involved in any of the incidents. In the months leading up to the evaluation, there was an incident that occurred between the Grievor and one Constable Paul Holmes, which appears to have sown the seeds of many of the comments contained in the appraisal. The Grievor and Constable Holmes had something of a spat over the radio, which prompted each of them to blame the other for improper radio procedure. This exchange was overheard by others, and became the subject of gossip and comment within the detachment. It also prompted Constable Holmes to submit a seven-page typed statement complaining about the Grievor. While ostensibly occasioned by the radio exchange, this complaint went further into certain alleged incidents when, Constable Holmes alleges, the Grievor dispatched officers to the scene of an occurrence without having obtained full particulars in advance. The incidents cited by Constable Holmes were - 12 - 1. The barking dogs incident in Vanastra, 2. The incident where Harry Sidney was shooting at a neighbour's cat, 3. A missing person complaint in Brucefield, and 4. An unruly patron at the Captain's Cove restaurant in Bayfield. It is significant that Constable Holmes makes a general comment in his statement as follows: "I must also point out that I as well as my fellow workers are extremely discouraged when we have to work with this individual. Morale is at an extremely low state when she is present. All workers, be it police officers, stenos, caretakers, management, are all on guard and feel she is making notes on their performance and actions." Constable Holmes was called as a witness. We did not feel that his complaints against the Grievor were well justified. Constable Holmes' objectivity is minimal. As a partner of the constable who had had the unfortunate dispute with the Grievor, Constable Holmes' perceptions were seriously coloured. As for the alleged incidents, about which we heard much, we are not convinced that the Grievor could have or ought to have obtained more information than she did. As such, these complaints are not well founded in fact. We are not saying that Constable Holmes could not have benefitted from further information from his dispatcher. The more information, the better. However, there are many - 13 - reasons falling short of poor performance by the dispatcher, which can explain the paucity of information in any given instance. Firstly, the information may not be known to the person reporting the occurrence. This was clearly the case in one or more of the alleged incidents. Secondly, the dispatcher cannot be expected to cross-examine the caller to extract every bit of useful information. Time may not permit such questioning. It is also possible that dispatchers do not have the special training required to elicit all such information. They are not detectives. They are not police officers. If the officers on the road legitimately feel that the dispatchers are not obtaining as much information as they should, the O.P.P. could consider some further training programme for the dispatchers directed specifically to questioning skills. Having received Constable Holmes' statement, Corporal Vessey also sought statements from Constable Gosse and acting Corporal Carter. Constable Gosse raised an alleged incident involving a domestic dispute in Maitland. He complained that the Grievor had failed to obtain full information. Again, on all the evidence, we do not find any factual basis to complain about the Grievor's handling of this incident. As for acting Corporal Carter's statement, he did not raise any such incidents but only commented on the radio dispute between Constable Holmes and the Grievor. - 14 - Corporal Vessey received these statements and evidently had some discussion with the officers involved. However, he did not investigate any of these incidents very thoroughly. In fact, when he met with the Grievor prior to preparing the evaluation in its final form, he did not show her the statements upon which he had relied. He did mention to her some but not all of the incidents complained of. Presumably the Grievor explained her side of the position to Corporal Vessey at that time. However, he chose to rely on the statements and on the incidents reported therein. In our view, it was not fair under the circumstances to withhold the statements and not give the Grievor a full opportunity to refute the allegations made against her. We are moved to conclude that Corporal Vessey was not at all objective when he chose to prefer the word of his fellow officers over that of the Grievor. It is possible that Corporal Vessey found himself in an awkward position. Perhaps he felt that by making some negative comment about the Grievor in her evaluation, that he could placate Constable Holmes and the others who were clearly in an anti-Grievor frame of mind. Whatever his motives, we must conclude that Corporal Vessey acted unfairly and sacrificed his objectivity. The incidents upon which he relied were~not investigated with the thoroughness of which Corporal Vessey is no doubt capable in his police work. By failing to confront her with the - 15 - evidence against her, not only did he sacrifice good investigation but he violated the elementary principle of fairness and the admonition not to "surprise" the Grievor with the evaluation. The allegations arising out of the statements of Constable Holmes and the others relate to the second branch of the second concern set out in the evaluation. As already stated, we find that there is no factual basis for this complaint. We will now deal with the other specific concerns raised. 1. LYING DOWN ON DUTY As expressed in the evaluation, one would conclude that the Grievor had made a habit of lying down to sleep during working hours. One would also conclude that this practice is objectionable because the person lying down would be in full view of members of the public. In fact, the Grievor's evidence which we accept is that she did not make a habit of lying down when on duty. She admitted to one occasion when she had a splitting headache and lay down to rest. Furthermore, the dispatcher is in a room that is never accessible to members of the public. It is even less accessible considering the general office is not open in the small hours of the morning. Corporal Vessey testified that . -< ” . . ‘< - 16 - there was a problem generally in the detachment with police officers sleeping on duty, and he advised that he had come down hard on the officers involved. It appears that he has generalized some of his concerns about these police officers, and inappropriately attributed them to the Grievor. He has tarred her with a brush intended for others. She had a legitimate excuse on the one occasion in question. Since she did not make a practice of lying down while on duty, there is no reason why this concern should be raised in her evaluation. It is without any proper factual foundation. 2. THE GRIEVOR'S TELEPHONE MANNER The gist of this concern is a casual and carefree manner of speaking, which Corporal Vessey claims has offended certain members of the public. The reference to" members of the public" derives from one incident where a Mr. Curtis had written a letter to the O.P.P. complaining that the Grievor had been curt with him on the telephone. This had occurred during a violent snowstorm when the Grievor was extremely busy arranging for highway closings and other emergency measures. The Grievor recalled the incident, and admitted that she had been short with the caller. Some people are more sensitive than others. There were no other complaints, and the use of the plural rather than the singular form of "members of the public" is inappropriate. Furthermore, the member of the public was not complaining about the Grievor's - 17 - casual and carefree manner. He was complaining of rudeness. The observation that the Grievor has a casual and carefree manner is actually Corporal Vessey's observation. There may be some validity to that observation, although we see it more as a matter of personal style than an area where criticism would be appropriate. In any event, we find this concern as written to be lacking in a factual basis and its presence in the evaluation is therefore not justified. 3. FAILING TO OBTAIN FULL PARTICULARS We have already commented upon the facts insofar as they relate to the incidents raised by the other Officers. However, we ought to refer also to a personal complaint that Corporal Vessey made. On one occasion while he was on the road he had asked the Grievor to obtain certain information for him about a suspect against whom there were some probation orders. The Grievor recalled that there was a probation order posted on the Board, and read to Corporal Vessey the terms of that order. Corporal Vessey was not satisfied that this was the correct order, and asked the Grievor to run a C.P.I.C. search. The search was run, and a further probation order was located. Corporate Vessey thought that the Grievor ought not to have assumed that all the relevant information was on the Board, but ought to have run the C.P.I.C. search without having to be asked. This complaint does not really lend itself to inclusion in a - 18 - section on "failing to obtain full particulars of an occurrence for the officer being dispatched". As a complaint per se, it seems rather trivial and we doubt that it would have been raised at all had Corporal Vessey not been looking for some evidence to bolster his evaluation. 3. RADIO PROCEDURES This is the one area of the evaluation which has some basis in fact. The problem, which we would not characterise as serious, was brought to the Grievor's attention prior to the evaluation being written. She acknowledged that there was some validity to it, and agreed to work at tightening up her adherence to procedure. The matter was essentially settled before this evaluation came into existence. There is no good reason for it to be included, although we are not prepared to say that it lacks basis in fact or objectivity. QUARTERLY EVALUATIONS The recommendation for quarterly assessments follows naturally from the stated areas of concern, only one of which is solidly grounded in fact. We do agree that quarterly assessments are out of the ordinary, and amount to a level of monitoring that is only appropriate for employees with proven deficiencies in their performance. Having found that the Grievor's performance was not justly criticized for the most part, we must conclude that quarterly assessments are not - 19 - justified either. In the result, therefore, we find that the evaluation in question cannot stand. We are satisfied that the concerns expressed are not well based in fact. We are also satisfied that Corporal Vessey breached the rules of fairness in failing to confront the Grievor with the allegations against her, and sacrificed his objectivity in the process. He further made statements that are misleading in that they suggest deficiencies in one area when Corporal Vessey in fact had in mind some other area. The Grievor has alleged that the evaluation in question was motivated by her Union activities. As an explanation, this is too simplistic. There can be no doubt that a certain atmosphere now exists surrounding the Grievor and a number of other people in the detachment, and we cannot help but observe that the relationship between the Grievor and the Officers involved deteriorated at the same time as her Union activities increased. But to say that what followed was purely "anti-unionism" is to ignore much of what we know about human nature. Labour relations are always mixed with human relations. The reactions provoked by the Grievor in this case were very personal and suggest to us that they had as much to do with the changes in the Grievor's character and manner brought about by her Union activity, as - 20 - they did with the Union activity itself. The Grievor was anything but subtle in her approach. She stepped on a lot of toes in a very short period of time. While she was acting perfectly within her rights to be active in the Union, she cannot escape some responsibility for the manner in which she conducted herself. The O.P.P. is a very special type of shop. There are decades of tradition that is strongly male and hierarchical in its orientation. It does not mesh easily with modern labour relations. A slightly more delicate touch might have been in order, and might have served to raise the consciousness rather than the ire of those Officers who have had some difficulty adjusting to the realities of modern labour relations. In the result, therefore, the grievance is allowed and the evaluation in question is ordered removed from the Grievor's personnel file. This Board does not rewrite evaluations, which is the relief requested by the Grievor. As for the quarterly assessments, we declare that such assessments were not appropriately imposed upon the Grievor. Since we cannot change the fact that they have been conducted for the last 18 months, we simply declare that they were I- 1 superfluous and ought no Nt to be continued. - 21 - P. CAMP - EMPLOYER MEMBER