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HomeMy WebLinkAboutBoogerman 13-11-08BETWEEN: IN THE MATTER OF AN ARBITRATION COMMUNITY LIVING MEAFORD ( "the Employer" or "the Agency') -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 235 ( "the Union ") AND IN THE MATTER OF C. BOOGERMAN GRIEVANCE 2012- 0235 -002 Arbitrator: Randy L. Levinson For the Employer: Paul A. Young Jeff Pilkington - Counsel - Executive Director For the Union: Mitch Bevan - Grievance Officer Deborah Powell -Local Union President C. Boogerman - Grievor Introduction 1. In this most unusual case, Mr. Boogerman deliberately engaged in a course of conduct designed to elicit a disciplinary response from the Employer, so that he could have an arbitrator hear what kind of place the Agency was to work at. While Mr. Boogerman, an employee since April 24, 2004 got his wish of being disciplined and appearing at arbitration, he did not receive a reprimand from the Employer that he expected. Instead, on November 5, 2012, the Employer discharged Mr. Boogennan for what it considered to constitute significant and unacceptable conduct that occurred on August 20, 2012 ( "August 20 "), October 18, 2012 ( "October 18 ") and October 30, 2012 ( "October 30 "). The parties agree that Mr. Boogerman engaged in culpable misconduct deserving of some discipline. However, they disagree about whether it is just and reasonable in all the circumstances to substitute another penalty for the discharge. At the time of his discharge, Mr. Boogerman was a Counsellor 2. He usually worked a shift between 3:00 p.m. or 4:00 p.m. until 11:00 in the evening. Mr. Boogennan did not have any discipline on his record. 2. Previously, on January 31, 2012 ( "January 31 "), the Employer on a non- disciplinary basis warned Mr. Boogerman about making unsubstantiated and inflammatory statements towards the Manager of Business and Finance ("W'), and claiming that she engaged in fraudulent activities against the Employer. Despite this non-- disciplinary warning, on August 20, Mr. Boogerman sent an email to JA. It contained what the Employer considered to be further inflammatory accusations. From its perspective, Mr. Boogerman's email included a claim that JA had engaged in 2 fraudulent activities against the Agency. The email also contained personal and derogatory comments towards JA. Mr. Boogerman copied the email to Agency staff and to individuals the Employer did not employ. On October 18, Mr. Boogerman sent another email to Executive Director, Jeff Pilkington. It contained language which the Employer considered to be disrespectful and inflammatory. Mr. Boogerman copied this email to Agency staff and to Union staff not employed by the Agency. On October 30, during the Agency's mandatory First Aid training, Mr. Boogerman made what the Employer considered to be a public inflammatory comment toward JA, who was not present during the training. 3. I will outline the basic thrust of the parties' positions. The Employer submitted Mr. Boogerman deliberately and knowingly engaged in very serious misconduct, in making specious unfounded allegations nothing short of libelous against JA, and he acted insolently towards JA and Mr. Pilkington, including copying others in his emails. On an escalating basis, Mr. Boogerman attempted to goad the Employer into a disciplinary response with the sole purpose of wanting to get on the witness stand at arbitration to slander people. The Employer did not condone Mr. Boogerman's behaviour. The Employer put Mr. Boogerman on notice that his conduct was inappropriate, that it would not be tolerated, what avenues to follow, and that he would be disciplined, if he repeated such conduct. Mr. Boogerman understood the Employer disapproved of what he said and did. Mr. Boogerman believed all his comments in his emails to be true at the time, and at the hearing. His attitude towards management and to challenging their integrity continues. Mr. Boogerman will do the same thing in the future. He did not express any regret or contrition for his behaviour. He did not 3 apologize. Mr. Boogerman also made a disrespectful and inflammatory comment about JA at the First Aid Training session on October 30. One cannot have confidence that Mr. Boogerman will alter his conduct in the future. His employment relationship is broken and irreparable. 4. The Union submitted that Mr. Boogerman's goal was to get some sort of reprimand, but not to get discharged. While Mr. Boogerman engaged in culpable misconduct deserving of some discipline, he was discharged without just cause. The Employer did not give Mr. Boogerman any warning about his behaviour in the form of prior formal discipline in February 2011, or in January 2012. Instead, the Employer effectively delegated its responsibility to OPSEU Staff Representatives Ted Loughead and Andrea McCormack. By not applying progressive discipline to previous incidents, the Employer condoned Mr. Boogerman's actions, and he could not reasonably expect to be discharged, for conduct which the Employer did not previously issue discipline. The Employer should have applied progressive discipline to Mr. Boogerman. Instead, the first discipline it took was the last step of progressive discipline. 5. Having considered the evidence adduced and the parties' submissions, I conclude in all the circumstances that it is just and reasonable to conditionally reinstate Mr. Boogerman to employment, with a five-day suspension without loss of seniority, but without compensation. Mr. Boogerman's reinstatement is subject to the following conditions. Mr. Boogerman shall first make unqualified apologies in writing for his misconduct in separate letters to JA and to Mr. Pilkington. In those letters, Mr. Boogerman shall also undertake not to repeat such misconduct. If Mr. Boogerman engages in such misconduct within 24 months of active service, the Employer may discharge him, and a proven breach of this condition will be deemed to be discharge for just cause. The facts 6. Before turning to the events leading to Mr. Boogerman's discharge, it is useful to consider some background, to put those events into some context. On March 9, 2011 ( "March 9 "), there was an investigation meeting involving Mr. Boogerman, Mr. Pilkington and Ted Loughead, OPSEU Union representative. The meeting resulted from an email that Mr. Boogerman sent out on February 28, 2011 to bargaining unit employees. Mr. Boogerman's email included a letter that Mr. Loughead had sent to JA. Mr. Loughead's email related to the content of two documents from the Employer about Family Day 2011, to which the Union took very strong exception. Mr. Loughead copied his email to Wendy Williams, OPSEU Regional Office Secretary, to Mr. Pilkington, to Mr. Boogerman, to Deb Powell, Local Union President, and to Rachel Loughead, Union Steward. 7. Mr. Boogerman's email read, in part, as follows: Please read the enclosed letter below. It is a letter from Ted Loughead, our Union Business Agent, to [JA]. From reading the letter, you will find out what kind of a devious, untrustworthy person [JA] really is. Most of us have known this for quite some time. [JA] really needs to be fired from this agency. If you have any comments, either positive or negative, or any opinion at all, I would be interested in hearing from you. I don't have everyone's e -mail address. If you know a fellow employee who has not received this e -mail, please forward this to them. E Reminder - please check each and every paystub. [JA] has, in the past, stolen from/short- changed/underpaid people. We have proof of this. If you are interested in seeing any of that proof, please let me know. I'll be glad to show you. S. At the meeting, Mr. Pilkington asked Mr. Boogerman why he circulated the email. Mr. Boogerman basically reiterated what was in his email. Mr. Pilkington said that he had looked into the initial discrepancy, and that JA rectified it immediately, once it was brought to her attention, by Mr. Loughead's email. Mr. Pilkington considered the matter resolved. Mr. Pilkington said that errors will always occur, and there is a proper way to address them. Mr. Pilkington told Mr. Boogennan that his circulation of Mr. Loughead's email was unwarranted, and was highly inappropriate. Mr. Pilkington told Mr. Boogerman that he was not to issue such statements again, and if he had an issue with any of the Agency's processes, that he was to follow proper procedures to have his issues resolved. Following an exchange between them, Mr. Pilkington advised Mr. Boogerman to address him respectfully, or he would be disciplined. Mr. Boogerman responded by saying "bring it on." Mr. Loughead intervened and requested a break. After few minutes, Mr. Boogerman and Mr. Loughead returned. Mr. Pilkington assured them that all financial processes were not only reviewed by him, but annually by an external auditor. Mr. Pilkington concluded the meeting by telling Mr. Boogerman that he needed to conduct himself professionally, and not to make these accusations in the future or there would be repercussions. 9. Mr. Pilkington did not issue discipline to Mr. Boogerman or send him a letter documenting his concerns. Mr. Pilkington explained the foregoing decision was based on his understanding of an assurance by Mr. Loughead to the best of his ability that Mr. Boogerman's behaviour would not recur in the future. Without this assurance, Mr. Pilkington said there would have been disciplinary action. Also, Mr. Pilkington said he had confidence in Mr. Loughead's ability to get through to Mr. Boogerman that his behaviour was unacceptable. 10. On January 31, 2012 ( "January 31 "), there was a grievance meeting. Mr. Boogerman and Andrea McCormack, OPSEU Staff Representative attended for the Union. Mr. Pilkington and Melissa Kennedy, Residential Manager attended for the Employer. Before the parties discussed the grievance on the agenda, Mr. Boogerman made accusations against JA. According to Mr. Pilkington, this included Mr. Boogerman stating that JA was committing fraud against the employees. Mr. Pilkington understood that Mr. Boogerman was intimating that JA had stolen funds from the Agency. Mr. Pilkington told Mr. Boogerman that the comments were inappropriate, and that they were not within the context of the meeting. Mr. Boogerman was to cease making these allegations or face disciplinary action, as there was no merit to them. Mr. Boogerman said "bring it on ". Mr. Pilkington advised Mr. Boogerman that if he had any concerns, that he could approach the police, and they would cooperate fully. Ms. McCormack requested a break. Mr. Pilkington and Ms. Kennedy left the room. After they were called back, Ms. McCormack indicated that they wanted to discuss the grievance at hand, and that later, they would discuss if Mr. Boogerman wanted to speak with the authorities about his claims. Mr. Pilkington did not follow up or take disciplinary action regarding Mr. Boogerman's comments. Given what Mr. Pilkington believed to be the clarity and context of the discussion with Ms. McCormack, Mr. Pilkington said he felt very confident that the Union was aware of the severity of the allegations, that it understood 7 the proper steps to address these concerns, that Mr. Boogerman's behaviour of making unsubstantiated allegations would not be tolerated, and that Ms. McCormack would get through to Mr. Boogerman. After this, Mr. Pilkington did not receive any contact from the police about any alleged inappropriate action by JA. 11. On August 17, 2412 ( "August 17 "), Ms. Williams, OPSEU Regional Office Secretary sent an email to JA. It was copied to Ms. McCormack, OPSEU Staff Representive, Mr. Boogerman, Ms. Loughead, Union Steward and Ms. Powell, Local Union President. It reads as follows: Subject: Invoice Good afternoon I received an invoice in the mail today for L235 CLM bargaining team members [Ms. Powell, Ms. Loughhead & Mr. Boogerman]. Would you please revise the invoice to have the correct date (the invoice says June, but the attached documentation is for July) and reverse the charges for July 241' as this was for direct negotiations with the Employer and should be Employer paid. Once I receive the revised invoice I will forward to the Accounting department for payment. Thank you. 12. On August 24, Mr. Boogerman sent an email to JA and to Ms. Williams. It was copied to Ms. McCormack, Ms. Loughead and Ms. Powell. It reads, in part, as follows: Subject: Invoice [JA] : when are you going to give up trying to screw either the union itself, or individual union members, out of money? Aren't you a little old for this kind of shit? I think that Jeffie boy, and the Board of Directors, need to find out about your attempted skullduggery. I know also that the members of your church will not think too kindly of you when they find out about your unChristianlike activities. Have you thought of retirement, [JA]? The union members, who are not management suck -ups, will not miss you at all when you are gone. It will be a better agency when you go. Have a nice day. 13. Mr. Boogerman explained why he sent his August 20 email. He said he was getting a little tired of JA trying to screw the Union itself or individual members out of money. More specifically, in relation to Ms. Williams' August 17 email, JA tried to dupe the Union out of money by sending an incorrect invoice, and had no right to claim for money for the persons referenced in that email. Mr. Boogerman said he put in the church reference to let JA know that employees do not like being ripped off, and that it is not a Christian -like activity to breach one of the commandments. 'Mr. Boogerman said that JA does a good job of appearing to be a pious churchgoing person on Sunday, but for the rest of the week she is what they call a hypocrite. Mr. Boogerman described his reference to Jeffie boy [Mr. Pilkington] and a similar reference to JA, as terms of derision. Mr. Boogerman said he was trying to goad Mr. Pilkington into disciplining him. Ultimately, the Employer paid the wages of the Union's bargaining team. 14. Mr. Pilkington was notified about this email from Mr. Boogerman. A meeting was scheduled with Mr. Boogerman to discuss it on August 28, 2013. The meeting was rescheduled for September 4, 2013. That day, Mr. Boogerman called Leanne Oosthoek, Day Services Manager to advise her that Ms. Powell and Ms. Loughhead were not available. Another meeting was scheduled for October 30, and would include Ms. McCormack. E 15. Meanwhile, on October 18, Mr. Boogerman sent an email to Mr. Pilkington, Ms. Loughead, Ms. McCormack and Ms. Powell. It was copied to Ms. Williams. The email read, in part, as follows: You know, Jeffrey, on re- reading this e -mail to you, I think that Rachel is criticizing you/management. As you've stated this "will not be tolerated ". I think that you need to reprimand Rachel [Loughead] for this. I really do. I really, really hope that Rachel picks me as her union steward for the grievance. I really wouldn't mind going around the mulberry bush with you again. You lose your temper so easily. (Very unprofessional, Jeffy Boy - maybe you could then take an anger management course for that). Maybe you should also try to become a "people person ", but they don't teach courses on that. It has to come to you naturally. Good luck with that. Thank you for your insights in this matter. La- dee -da. 16. Mr. Boogennan explained that he used the term " Jeffy Boy" as a term of derision. He acknowledged that was inappropriate, and his reference to taking an anger management course. When referring to the end of his email, Mr. Boogerman said it was a little overboard, but that there was a purpose in doing that. He explained the reason he wrote this email was that he was trying to get a reaction from Mr. Pilkington, that he did not receive, when he previously emailed JA. Mr. Boogerman said that he was trying to goad Mr. Pilkington into disciplining him, and he was hoping to be reprimanded. He could grieve, and then could go to arbitration, and at least one person from the outside, the arbitrator would be an unbiased neutral third party who would hear what kind of place the Agency is to work at. Mr. Boogerman described it as a toxic workplace, where a managerial employee preys on employees, tries to separate them from their money and when the Executive Director is told about it, and it shown proof of it, he does nothing about it. 10 17. On October 30, Ms. Kennedy and Ms. Oosthoek attended a First Aid training session. There were about 15 employees, including Mr. Boogerman. During the training, they heard a siren from an ambulance. Ms. Oosthoek said she wondered what was going on. Mr. Boogerman replied that maybe JA was having a heart attack loud enough for others to hear. Mr. Pilkington was advised about this. Later that afternoon, there was a previously arranged meeting to discuss Mr. Boogerman's August 20 email. Mr. Boogerman, and Ms. Powell attended for the Union. Ms. McCormack was on speaker phone. Mr. Pilkington and Ms. Oosthoek attended for the Employer. They first discussed Mr. Boogerman's comment at the First Aid training. They then discussed Mr. Boogerman's emails of August 20 and October 18. There was discussion about the directions Mr. Pilkington gave to Mr. Boogerman at meetings on March 9, 2011 and January 31, 2012. Mr. Pilkington asked Mr. Boogerman about whether he thought he had the right to make personal and insolent comments regarding JA. Mr. Boogerman responded if it was warranted. Mr. Pilkington asked Mr. Boogerman about whether he would do it again. Mr. Boogerman replied yes. Mr. Pilkington said he expected Mr. Boogerman to write letters of apology to JA and to him, and he asked him to do so. Mr. Boogerman said no. Mr. Boogerman did not express any regret or remorse. After reviewing the situation, the Employer discharged Mr. Boogerman. The decision 18. The parties agree that Mr. Boogerman engaged in culpable misconduct deserving of some discipline. However, they disagree about whether it is just and reasonable in all the circumstances to substitute another penalty for the discharge. Was 11 the Employer obliged to apply progressive discipline short of discharge, as a matter of just cause, in all the circumstances? The answer to the foregoing questions will involve assessing and weighing a number of factors. They include: -The nature of the misconduct. -What some of Mr. Boogerman's inflammatory and insolent rhetoric about JA's integrity and her alleged wrongdoing seemingly arose from. -The Employer's misunderstanding about the nature of some of the foregoing. -While Mr. Boogennan knew what he was doing was wrong, the impetus behind his single- minded and misguided effort to escalate his course of misconduct. -The Employer's non - disciplinary efforts to address Mr. Boogerman's previous behaviour. -The nature of the warnings the Employer gave to Mr. Boogerman. - Before his discharge, Mr. Boogerman did not express any contrition, and he indicated effectively that he would engage in future similar misconduct, if he felt it was warranted. -At the hearing, Mr. Boogerman did not express any contrition, and he did not indicate that he would not engage in future similar misconduct. -Mr. Boogerman's seniority. -The absence of any previous discipline on Mr. Boogerman's record. 19. There is no dispute that Mr. Boogerman engaged in serious escalating culpable misconduct by his insolent comments directed first to JA, and then directed to Mr. Pilkington. This is plainly evident from Mr. Boogerman's insolent comments in his emails of August 20 and October 18, which he copied to others. In contrast, Mr. Boogerman's remark at the First Aid meeting on October 30 that maybe JA was having a heart attack materially differs from the foregoing. I do not find this gratuitous 12 comment to be inflammatory, and it does not rise to a level of insolence. In that regard, Mr. Boogerman did not say something to the effect that he wished that JA was having a heart attack. 20. Mr. Boogerman's insolence in his August 20 email to JA includes the cominents: -When is she going to give up trying to screw the Union or employees out of money. -She is a little old for this kind of shit. -It is attempted skullduggery. -Her church members will not think too kindly of her when they fmd out about her "unChristianlike" activities. -Has she thought of retirement? -Union members who are not management suck -ups will not miss her at all when she is gone. -It will be a better agency when she goes. 21. At the hearing, Mr. Boogerman acknowledged that his references in his August 20 email to Jeffie boy [Mr. Pilkington] and a similar type reference to JA's first name were terms of derision. In his October 18 email to Mr. Pilkington, Mr. Boogerman's insolence towards Mr. Pilkington includes the following: •I [Mr. Boogerman] would not mind "going around the mulberry bush" with [you] Mr. Pilkington again. -You lose your temper so easily. (Very unprofessional, Jeffy Boy - maybe you could then take an anger management course for that). -Maybe you should also try to become a "people person ", but they don't teach courses on that. It has to come to you naturally. Good luck with that. 13 22. When assessing Mr. Boogerman's insolent course of conduct, there are other factors to consider that provide a unique context. First, some of his inflammatory and insolent rhetoric about JA's integrity and her alleged wrongdoing seemingly arose from disagreements about how the collective agreement should be administered. These disagreements can be addressed respectfully through the grievance procedure. Second, as I understand it, Mr. Boogerman did not allege that JA actually engaged in criminal misconduct. Third, it appeared the Employer misunderstood the basic nature of some of Mr. Boogerman's rhetoric. This is evidenced by Mr. Pilkington telling Mr. Boogerman on January 31 that if he had any concerns, he could approach the police, and they would cooperate fully. It is unlikely the Employer would have directed Mr. Boogennan to contact the police, as opposed to directing him to use the grievance procedure, if the Employer understood that Mr. Boogerman was speaking about disputes concerning collective agreement administration. I also note that at the October 30 meeting, there was discussion about the directions Mr. Pilkington gave to Mr. Boogerman at meetings on March 9, 2011 and January 31, 2012. 23. Fourth, Mr. Boogennan knew what he was doing was wrong. Why he would do this was revealed at the hearing. The impetus behind Mr. Boogerman's single- minded and misguided effort to escalate his course of misconduct was his unstated plan. This plan was designed to elicit a disciplinary response from the Employer, so that Mr. Boogerman could have an arbitrator hear what kind of place the Agency was to work at. This incomprehensible and ill- conceived plan plainly demonstrates Mr. Boogerman's complete misunderstanding about the nature of the arbitration process. Arbitration addresses the relevant legal issues that a grievance raises. The arbitration process is not 14 designed as a forum for a grievor to speak about irrelevant workplace perceptions. Unsurprisingly, the hearing here focused only on relevant legal issues the grievance raised. 24. Was the Employer obliged to apply progressive discipline, as a matter of just cause, in all the circumstances? In my view, the Employer ought to have applied progressive discipline short of discharge, in Mr. Boogerman's circumstances. Before the incidents in issue, the Employer attempted to manage Mr. Boogenman's escalating course of conduct from March 2011 on a non -- disciplinary basis. However, while doing so, the Employer did not give a sufficiently clear warning to Mr. Boogerman that he may be discharged, if he were to continue his course of misconduct. Instead, the Employer's first disciplinary response to Mr. Boogerman's escalating course of conduct from March 2011 was discharge. At that point, he was an employee of some eight and one -half years, without any discipline on his record. 25. Before the incidents in issue, the Employer who was unaware of Mr. Boogerman's unstated plan attempted to manage his behaviour on a non - disciplinary basis. This included its non - disciplinary efforts to address Mr. Boogerman's behaviour at the March 2011 meeting, and at the January 2012 meeting. The revelation of Mr. Boogerman's plan at the hearing now explains his otherwise inexplicable and provocative responses of "bring it on" at each meeting. The Employer's previous non- disciplinary treatment of substantially similar and what appears to be more serious misconduct suggests that what Mr. Boogerman did on August 20 and on October 18 were not dischargeable offences. Also, it suggests on a just cause basis that what Mr. Boogerman did on August 20 and on October 18 did not warrant the Employer moving 15 from no disciplinary response to a discharge. For example, in Mr. Boogerman's email of February 28, 2011 to bargaining unit employees, he wrote, in part, as follows: "From reading [Mr. Loughead's] letter, you will find out what kind of a devious, untrustworthy person [JA] really is. Most of us have known this for quite some time. [JA] really needs to be fired from this agency.... Reminder - please check each and every paystub. [JA] has, in the past, stolen from/short- changed/underpaid people. We have proof of this." On January 31, before the parties discussed the grievance in issue at a grievance meeting, Mr. Boogerman made accusations against JA. According to Mr. Pilkington, this included Mr. Boogerman stating that JA was committing fraud against the employees_ Mr. Pilkington understood that Mr. Boogerman was intimating that JA had stolen funds from the Agency. 26. Moreover, the nature of the warnings the Employer gave to Mr. Boogerman before his discharge is troubling. There is no doubt the Employer effectively advised Mr. Boogerman of some potential disciplinary consequences, should his misconduct persist. However, before the discharge, the Employer did not make it clear to Mr. Boogerman in sufficiently precise terms that if he engaged in similar future behaviour, he would potentially face a disciplinary response up to and including discharge. Had this been done, there could be no genuine and reasonable misunderstanding about the potential disciplinary consequences, if Mr. Boogerman were to continue his course of misconduct. 27. There are some further factors to consider. Before his discharge, Mr. Boogerman did not express any contrition, and he indicated effectively that he would engage in future similar misconduct. More particularly, at the October 30 meeting, Mr. 16 Boogerman effectively told Mr. Pilkington the following. He thought he had the right to make personal and insolent comments regarding JA, if it was warranted, and he would do it again. Mr. Boogerman rejected Mr. Pilkington's request to write letters of apology to JA and to him. Mr. Boogerman did not express any regret or remorse. At the hearing, Mr. Boogerman did not express any contrition, and he did not indicate that he would not engage in future similar misconduct. The foregoing raises obvious concerns about Mr. Boogerman's rehabilitative prospects. That being said, I conclude that these concerns do not tip the scales against reinstatement, or outweigh or obviate the Employer's just cause obligation to apply progressive discipline, in Mr. Boogerman's circumstances. In my view, these concerns can be ameliorated effectively by conditions of reinstatement. It appears that the primary causes of Mr. Boogerman's course of conduct were his incomprehensible and ill- conceived plan, and his single- minded and misguided effort to achieve his goal. Mr. Boogerman will now plainly understand that this course of conduct cannot continue in any form. Also, Mr. Boogerman will now plainly understand that any concerns about collective agreement administration should be processed respectfully through the grievance procedure. 28. I note that part of Mr. Boogerman's plan was to tell an arbitrator what kind of place the Agency was to work at, namely a toxic workplace, where a managerial employee preys on employees, tries to separate them from their money and when the Executive Director is told about it, and it shown proof of it, he does nothing about it. As I understand it, this relates to nothing more than disputes about how the collective agreement should be administered. If future disputes arise, they should be processed respectfully through the grievance procedure. If any future dispute arises about 17 collective agreement administration, Mr. Boogerman will now plainly understand that it is wholly inappropriate to continue to characterize it, or to continue to act, as he has done in the past. Having now had the benefit of a third -party assessment of his behaviour, Mr. Boogerman can be under no reasonable misapprehension about the status of his employment relationship. 29. In all the circumstances, I conclude it is just and reasonable to conditionally reinstate Mr. Boogerman to employment, with a five -day suspension without loss of seniority, but without compensation. Mr. Boogerman's reinstatement is subject to the following conditions. Mr. Boogennan shall first make unqualified apologies in writing for his misconduct in separate letters to JA and to Mr. Pilkington. In those letters, Mr. Boogerman shall also undertake not to repeat such misconduct. If Mr. Boogennan engages in such misconduct within 24 months of active service, the Employer may discharge him, and a proven breach of this condition will be deemed to be discharge for just cause. I remit the matter to the parties, and I will retain jurisdiction, should any issues arise in implementing this award. Finally, I would like to thank Mr. Young and Mr. Bevan for thoughtfully and expeditiously presenting this matter. DATED at Ancaster, this 28th day of October, 2013. RANDY A LEVINSOPT, ARBITRATOR Postscript 30. After this award was released, Mr. Boogerman sent written "apologies" in separate letters to Mr. Pilkington and to JA. These "apologies" were found not to fulfill the apology conditions of his reinstatement, and the grievance was dismissed. The reasons are set out in the attached supplementary award. 19 BETWEEN: IN THE MATTER OF AN ARBITRATION COMMUNITY LIVING MEAFORD ( "the Employer ") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION ON BEHALF OF ITS LOCAL 235 ( "the Union ") AND IN THE MATTER OFC.BOOGERMAN GRIEVANCE 2012 -0235 -002 Arbitrator: Randy L. Levinson For the Employer: Paul A. Young - Counsel For the Union: Mitch Bevan - Grievance Officer Supplementary Award Introduction 1. This has been a most unusual case from beginning to end. First, Mr. Boogerman was discharged. Second, he was conditionally reinstated by my award dated October 28, 2013, with a five -day suspension without loss of seniority, but without compensation. At paragraph 29, I wrote, in part, that: "[M]r. Boogerman's reinstatement is subject to the following conditions. Mr. Boogerman shall first make unqualified apologies in writing for his misconduct in separate letters to JA and to Mr. Pilkington. In those letters, Mr. Boogerman shall also undertake not to repeat such misconduct." 2. On November 1, 2013, I received an email with attachments from Executive Director, Jeff Pilkington to Mr. Boogerman dated October 31, 2013. The letter reads, in part, as follows: We are in receipt of your purported apologies to me and to [JA]. Please be advised that it is the employer's position that you have not met the conditions which Arbitrator Levinson placed upon your reinstatement which are set out in paragraph 29 of the award. Accordingly, having failed to meet these conditions it is the position of the Employer that it is under no obligation to reinstate you and therefore your employment remains terminated. In the alternative, your purported apologies constitute further misconduct and pursuant to the provisions of paragraph 29 of the arbitration award your employment is hereby terminated as you have repeated your misconduct. 3. Mr. Pilkington's email attachments contain Mr. Boogerman's "apologies" to Mr. Pilkington and to JA. Respectively, they read: J. Pilkington, I apologize for the manner in which I criticized you in the past which led to my erroneous dismissal. 2 In the future, if I decide to reveal that you are a misplaced, incompetent executive director, I will do so using the grievance process. Signed, [Mr. Boogerman] [JA] I apologize for the manner in which I criticized you in the past which led to any erroneous dismissal. In the future, if I decide to reveal that you are a lying, thieving sociopath, I will do so using the grievance process. [emphasis added] Signed, [Mr. Boogerman] 4. On November b, 2013, a teleconference was held with counsel. I was advised that following the issuing of my award, Mr. Boogerman spoke with Mitch Bevan, Grievance Officer. As I understand it, Mr. Boogerman asked Mr. Bevan about the meaning of an unqualified apology. Mr. Bevan explained that the apology must be unqualified, without a "but" and without an explanation. After that, Mr. Boogerman sent his "apologies" to the Employer. He did not provide them to the Union, and later advised Mr. Bevan they were confidential. On Mr. Boogerman's behalf, the Union argued that he should be given another opportunity to write apologies that comply with any award. The Employer vigorously opposed this requested relief. The decision 5. I have considered the parties' submissions and the information provided. In the circumstances, I conclude that Mr. Boogennan should not be given another 3 opportunity to write apologies that comply with any award. Viewed objectively, it is evident that Mr. Boogerman's so- called "apologies" do not fulfill the clearly- stated and easily understood apology conditions of his reinstatement. First, Mr. Boogerman was obliged to make unqualified apologies in writing for his misconduct in separate letters to JA and to Mr. Pilkington. Before writing his so- called "apologies ", Mr. Boogerman sought clarification from Mr. Bevan about the meaning of an unqualified apology. Mr. Bevan explained what it obviously means. Accordingly, Mr. Boogerman could be under no genuine or reasonable misunderstanding about what he was required to do. Nevertheless, for reasons best known to Mr. Boogerman for which he bears sole responsibility, Mr. Boogerman did not make unqualified apologies to Mr. Pilkington and to JA. 6. Instead, Mr. Boogerman deliberately continues to direct insolent comments to Mr. Pilkington and to JA, with a qualification. Mr. Boogerman's so- called "apology" to Mr. Pilkington includes an insolent reference to Mr. Pilkington as a "misplaced, incompetent executive director ". Mr. Boogerman's so- called "apology" to JA includes an insolent reference to JA as a "lying, thieving sociopath". Mr. Boogerman attempts to qualify his insolent comments by stating that "if he decides to reveal" the foregoing, he will now do so using the grievance process. This "qualification" also flies in the face of the first clearly- stated and easily understood apology condition of his reinstatement. By his further conduct in the form of his so- called "apologies" to Mr. Pilkington and to JA, Mr. Boogerman has now clearly demonstrated that he is an incorrigible employee, insofar as his continuing insolence towards JA and towards Mr. Pilkington. Additionally, Mr. Boogerman's so -called "apologies" do not fulfill the 11 second clearly- stated and easily understood apology condition of his reinstatement, as they do not contain any undertaking about not repeating his earlier misconduct. As Mr. Boogerman's "apologies" do not fulfill the apology conditions of his reinstatement, the grievance is dismissed. Before concluding, I would like to thank Mr. Bevan and Mr. Young for their submissions. DATED at Ancaster, this 8th day of November, 2013. L. LEVINSON, ARBITRATOR 5