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Home My WebLink About2012-2847.Bisaillon.16-05-20 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-2847, 2013-1556, 2013-1557, 2013-1558, 2013-1559, 2013-1560 UNION#2012-0616-0023, 2013-0616-0022, 2013-0616-0023, 2013-0616-0024, 2013-0616-0025, 2013-0616-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bisaillon) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Bram Herlich Vice-Chair FOR THE UNION Caroline (Nini) Jones Paliare Roland Rosenberg Rothstein LLP Counsel Debra McKenna Paliare Roland Rosenberg Rothstein LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING August 21, 2014; February 6, March 10 & March 23, April 27 & 28, May 6, 2015; January 21 & 26, 2016 Decision Background [1] Michel Bisaillon (hereinafter referred to as the “grievor”) was suspended with pay and prohibited from attending in the workplace on February 22, 2013, pending an investigation into his alleged improper conduct. The suspension and prohibition (though initially imposed for a period of only five days) lasted (with some alteration that will be detailed) for a period of some three months. He returned to work at the end of May 2013 and, further to the results of the investigation, was issued what the employer styled as a “non-disciplinary letter” chastising him for his alleged misconduct. [2] The grievor, at all material times, was the local union president working out of the North Bay Jail (“NBJ”). [3] The union does not merely assert that the grievor’s treatment amounts to discipline without just cause. It levels what is a far more serious allegation: that his treatment was motivated by anti-union animus and that the employer deliberately abused and violated the procedures under (among others) its Workplace Harassment and Discrimination Policy (“WDHP”) in order to penalize the grievor for his trade union activities and to improperly interfere with legitimate and protected trade union activities. [4] Before outlining the facts in greater detail, I offer the following summary to provide some context. [5] By letter dated February 21, 2013, the (then) Superintendent of NBJ, Lou-Ann Lucier (hereinafter “Ms. Lucier”) suspended the grievor with pay for a period of five days. The letter was delivered to the grievor the following day at a meeting at which he had union representation. The letter was headed; “Suspension With Pay – Pending Investigation (5-days)” and included the following: It has come to my attention that serious situations have occurred whereby you have allegedly participated in ongoing bulling [sic], harassing and threatening behaviour both within the workplace and outside the workplace. - 2 - As a result of your alleged involvement in this matter, I have decided it is necessary to suspend your employment with pay, pending investigation, in accordance with Section 36 (2) of the Public Service of Ontario Act. You are being placed on suspension for your next five (5) scheduled working days… You will be advised further as the investigation progresses. For the period of the suspension, you will be required to make yourself available to the institution or investigator during administrative hours. Moreover, during the suspension you are not to attend the institution without the prior approval of the undersigned, the Superintendent. [6] The only consistent communications the grievor received subsequent to the initial suspension were periodic notices of the extension of his suspension. That status was extended and continued until April 5, at which time (in circumstances which will be described more fully) it was changed to a paid administrative leave. That, however, did not eliminate the prohibition on the union president’s attendance at the workplace. [7] On April 24, 2013, after the investigation was concluded, the grievor was summoned to attend an “allegation meeting”. In lieu of the broad and entirely unparticularized allegations outlined in the initial suspension letter, Ms. Lucier identified the following allegations: 1. You violated the Ministry’s Statement of Ethical Principles through your actions at an implementation meeting on February 21, 2013. Specifically, you failed to maintain working relationships based on mutual respect, dignity and cooperation. 2. You directed another employee to post your suspension letter in the workplace, and in doing so potentially interfered with an ongoing investigative process. [8] We shall examine, in much greater detail, how item #1 relates to the initial allegation. For the moment, I note that item #2 (and there is no dispute that the grievor made arrangements which resulted in his suspension letter being posted on the union bulletin board in the workplace) had obviously not yet occurred at the time the initial suspension letter issued. - 3 - [9] The meeting took place on May 2, 2013. On May 21, 2013 Ms. Lucier issued the grievor a “non-disciplinary letter”. It repeated the allegations set out in the letter (as cited above) and concluded as follows: After taking into account all of the available information, I find both allegations are substantiated. As a result, after having an opportunity to carefully review all the facts and evidence before me, the information you provided at the meeting and your employment history, I have decided to issue you this non-disciplinary letter of counsel. This letter of counsel is to remind you of the obligations and the standard of conduct expected of all employees, specifically the obligation to maintain working relationships based on mutual respect, dignity and cooperation. I would also like to advise you that posting of any types of private and confidential letters of this nature is not to be posted in the workplace [sic] in the future, unless you have the approval of the Superintendent. The facts – a little more detail [10] Many of the events relevant to the instant determination took place during the course of a single day: February 21, 2013. Much of the relevant activity on that day took place away from the NBJ at a different Ministry office location (the “office” or the “Regional Office”) where a meeting had been planned. There were a number of participants at this site: the grievor and two other local union representatives; two representatives of local NBJ management (Ms. Lucier did not attend at the site); and two other bargaining unit employees. [11] As will become evident, there were many peculiarities in the evidence in this case. Among them, despite the plentiful numbers of attendees at the office and the ultimate centrality of the events that took place there, the only direct viva voce evidence that was proffered was that of the grievor. Despite not having been in attendance, Ms. Lucier did testify regarding the events at the office. She relied on written reports (provided only by the two managers) and conversations she had with (those and other) managers and the two bargaining unit employees, from whom she neither received nor required any written reports. She took no contemporaneous notes of these conversations and also appears to have relied, to some extent, on information provided - 4 - to her by the Deputy Superintendent, who was also not in attendance but may have relayed information received from others who were. She also chose not to confer with any of the trade union participants to get their assessments of what had transpired. [12] The (sometimes multiple) hearsay nature of Ms. Lucier’s evidence regarding events at the office is patent. And no explanation was offered for the lack of direct evidence regarding these events. For these reasons alone, I would prefer the evidence of the grievor. [13] There is a further reason, however, to find the grievor’s testimony more reliable. In a manner not restricted to her view and description of the office events, Ms. Lucier did not hesitate to offer, as truth, what was merely her interpretation of the meaning of statements made by others or her opinion of what others understood. And while, ultimately, there was little controversy over the events at the office, there was at least one point where the evidence of the grievor was at odds with that of Ms. Lucier. The latter concluded that the grievor had been yelling within earshot of the two bargaining unit members when he described them as “anti-union”. The grievor did not deny the description but was clear that he used it in a hallway conversation with the management representatives, not the bargaining unit employees, that he did not yell and, in any event, that the two bargaining unit employees were not within earshot. [14] The claim that the grievor had yelled assumed some importance, in Ms. Lucier’s view, both with respect to the decision to initiate the investigation and to the findings included in the “non-disciplinary letter”. However, in view of the foregoing, I am unable to conclude that this yelling ever occurred. [15] I turn now to some background information and then to the events of February 21, 2013 and their aftermath. - 5 - Prelude to the meeting of February 21, 2013 [16] The grievor commenced his employment as a Correctional Officer (“CO”) at NBJ well over 20 years prior to the events here in question. He was, from the outset, active in the union, commencing in 1991 when he became a steward. He was elected vice- president of OPSEU Local 616 in 1998 and President in 2001-2002, a position he held until 2007. He was then seconded directly to the (parent) union to act in various capacities for some four years. In 2011 he returned to NBJ and, shortly thereafter, returned to his position as president of the Local, a position he continued to hold before, during and after the events in question. [17] By contrast, Ms. Lucier was relatively new to NBJ at the material time. She arrived in November 2012 and was, initially, slated to occupy the post for only a matter of weeks, pending the results of an investigation (not material to these proceedings). Weeks, however, turned into months and Ms. Lucier remained as Superintendent until shortly after the grievor returned to work in late May 2013. [18] Ms. Lucier’s underlying motive in taking certain steps is a central issue in this case. It is perhaps a labour relations truism that improper motivation is seldom acknowledged by a person alleged to be acting, at least in part, out of anti-union animus. It is rather more often a matter of inference based on all of the evidence. [19] Despite her recent arrival at NBJ, even in what was always conceived as a temporary stay, Ms. Lucier sought to effect significant changes. The grievor testified that Ms. Lucier arrived with an agenda of change. Ms. Lucier did not dispute that general characterization. When asked, in cross-examination, if she viewed her arrival as an opportunity to “clean up”, she responded that she took responsibility for the position and that is what she did, especially after it became clear that her tenure would be more than a few weeks. She further acknowledged her view that the Local and its executive were influential in the workplace and that the workplace was dominated by a problematic culture typified by what she referred to as “classic systemic issues”. While, apart from a reference to the “code of silence”, she did not enumerate these systemic issues. She - 6 - described the workplace as “stuck” in this culture and as one in which there was much resistance to change. When invited and pressed to identify the union as a prime perceived obstacle to change, she acknowledged that there were serious trust issues between the union and management, but she studiously declined to lay the blame for what she viewed as a pathological condition, entirely or exclusively at the union’s feet. [20] One change Ms. Lucier determined to make was the elimination of what the parties referred to as “line meals” or “line breaks”. This was a longstanding practice: COs were provided meals from the NBJ kitchen and, in consideration of that benefit, they were much more “flexible” with respect to claiming or taking all of the breaks to which they may otherwise have been entitled. It is not necessary to get into the minutiae of details, but it was evident that the elimination of the practice and the resumption of claims to full break entitlements would pose operational difficulties, particularly with respect to adequate staff coverage. A meeting (which I shall refer to as “the first meeting”) was scheduled for the union executive and the employer to discuss implementation strategies for ceasing line meals. The invited participants were sent an email from Ms. Lucier confirming the date, time and place of the meeting, which was held on February 12, 2013 at the Regional Office. One of the union attendees was Eric Jubinville. Mr. Jubinville was not a member of the union executive and had not received the email invitation from Ms. Lucier. However, the grievor explained that one of the executive members had been unable to attend and Mr. Jubinville, who was a steward, was tasked with attending in her stead. Although no objection was apparently raised to his attendance at the meeting, Ms. Lucier, in her testimony, certainly took issue with the propriety of his attendance since he was not an executive member of the union and went so far, later in her cross-examination, to suggest that the grievor had lied in describing Mr. Jubinville as a steward. No evidence was provided to substantiate this allegation or to otherwise contradict the grievor’s testimony that Mr. Jubinville was a steward. - 7 - Planning of the next meeting [21] No firm or productive conclusions were arrived at during the first meeting and a further meeting was scheduled. The manner of its scheduling, the determination of its attendees and the information provided (or not) to the union formed the basis of much disagreement between the parties. Ultimately, the meeting was scheduled and almost held on February 21, 2013. The employer invited three additional bargaining unit employees, two of whom presented themselves at the appointed time and place. The two, however, were identified by the union, in a characterization that was never disputed, as less than avid supporters, indeed, sometimes vocal opponents of the union. [22] The grievor testified that he and the other union representatives attending the meeting were surprised to be confronted by the presence of two bargaining unit members, who were neither union officials nor representing the union (and, in particular, the two employees the employer had selected) at what they understood to be a union- management meeting. The grievor and the union representatives declined to participate in the meeting and left. [23] Ms. Lucier explained that the change in character of the meeting was part of her original conception. The first meeting was to be with the union. She then described her intended efforts to make the process more open and transparent. She wanted to involve a larger staff grouping and planned to engage all staff since the change in question would affect all staff. She planned to prepare a memo to all staff and to solicit greater participation in the next meeting. She insisted that she had advised the union of her intentions and that, as she put it more than once, it was “well understood” by all that other bargaining unit members would be attending the next meeting. [24] The grievor adamantly denied that he either “understood” or had ever been advised that other bargaining unit members (i.e. in addition to those selected by the union) would be attending the meeting. He viewed this as a continuation of the first meeting. He readily acknowledged that Ms. Lucier had advised him she would be - 8 - bringing other people to the meeting – something he understood to mean more employer representatives. [25] There are many reasons to prefer and accept the evidence of the union president over that of the Superintendent on this point. [26] First, there is no documentary evidence to establish that any notice was provided to the union of the anticipated attendance of other bargaining unit employees, let alone the particular employees who had been invited. For the first meeting, Ms. Lucier sent an advance email to all those projected to attend that meeting. For the second (the February 21, 2013) meeting, two similar emails were sent: one to the projected management attendees and another to the three bargaining unit employees who the employer had elected to invite. No such email was sent to any of the union participants and neither were they copied on the two emails that were sent. No cogent explanation for this divergence was proffered. [27] Secondly, under the consistently rigorous and unsparing cross-examination of union counsel, Ms. Lucier tendered two significant concessions on this point: that although she may have referred, in conversation(s) with the grievor, to additional “staff” or “members” who would be attending the second meeting, she never explicitly advised the grievor or the union that bargaining unit employees other than the union representatives were to attend. She also acknowledged that, in the circumstances, the grievor’s understanding, i.e. that the additional attendees would be management representatives not bargaining unit employees, was not unreasonable. [28] Third, any conclusion that the union had advance notice of the attendance of additional bargaining unit employees simply seems unlikely in the circumstances. It would have to follow that the union attended for the commencement of the scheduled meeting with the full knowledge that additional bargaining unit employees would attend, and failed to raise any objection until the moment the meeting was to commence. It is difficult to divine what possible advantage, strategic or otherwise, would be gained by such an approach. It is simply more likely that the union, as the grievor testified, was - 9 - entirely unaware of the invitation to other bargaining unit members until it actually saw them at the meeting. [29] Fourth, Ms. Lucier frequently repeated her stated goals of transparency and inclusion (in various contexts including the invitation to bargaining unit employees to attend this meeting). But, at least here, these goals were largely theoretical and not operationalized. The employer chose to invite three particular bargaining unit employees. There was no general invitation to bargaining unit members at large to attend the meeting, despite Ms. Lucier’s stated intention to “engage all”. And the Memorandum that was forwarded to all staff advising of the upcoming February 21st meeting and the addition of “additional officers” to the group was not forwarded until after the meeting, aborted though it was, had taken place. The memo was forwarded, at 10:26AM; the events at the Regional Office had ended some two hours earlier. And by the time the memo was forwarded, Ms. Lucier was engaged in her review of the events at the meeting. The precise timing or sequence of events on that day is less than clear, but much happened on February 21st. The meeting, the memo to staff and the decision to suspend the grievor all occurred within a relatively brief temporal window on that day. And while there are many peculiarities regarding the timing and record of events (some of which I shall return to), for the moment, the “after-the-fact” memo to staff, more or less contemporaneous with the decision to suspend the grievor, remains curious in a context where Ms. Lucier claimed to be making efforts to engage all staff to permit them to participate in the process. [30] Finally, and perhaps somewhat more tangential to the immediate question of whether the union was provided advance notice of the attendance, there are abundant reasons to question the reliability or accuracy of Ms. Lucier’s account of how the selection of which bargaining unit members to invite to the meeting was made. [31] The union asks me to conclude that Ms. Lucier had a principal role in the selection of bargaining unit employees known to have a certain antipathy to the trade union. For her part, Ms. Lucier denied any active participation in the selection. It was a - 10 - task she claimed to have delegated to her two OM16s with guiding instructions that employees with a broad range of experience be selected. [32] However, neither of the OM16s corroborated Ms. Lucier’s account. And the documentary evidence, which includes the occurrence reports authored by those two OM16s (who did not testify) ranges from difficult to impossible to reconcile with Ms. Lucier’s evidence. At the Regional Office, both were asked (consistent with the grievor’s evidence) who was responsible for inviting the two COs to join the meeting. Ms. Nyberg’s recorded response was “I don’t know, but I expect that Lou Ann [i.e., Ms. Lucier] did”; Mr. Barnes’ recorded response to a similar query was “I advised [the grievor] he received the emails from [sic] regarding their attendance”. It is not disputed that no such emails were either sent to or received by the grievor or any other trade union representatives. In the circumstances, I am persuaded that, in all likelihood, Ms. Lucier was less than candid regarding the role she played in the selection of the COs to be invited to the meeting. [33] In view of the foregoing, I am satisfied that neither the grievor nor the union were provided any advance notice, written or otherwise, that other bargaining unit employees would be attending the February 21st meeting, let alone who those employees were. (I note that view was ultimately confirmed in the investigator’s notes of an interview with one of the invited employees.) The February 21, 2013 meeting [34] The trade union contingent, which comprised the grievor, Mr. Jubinville and Carol Beaulieu, arrived at the office around the scheduled meeting time of 8:00AM. They proceeded to the same room in which the prior meeting had been held. There appears to have been some confusion regarding the allocation of meeting rooms. Shortly after their arrival, someone (whom the grievor did not recognize) entered and advised that the room was needed for another purpose and directed them to a different room on a different (the third) floor. At about the same time, the two COs arrived. The grievor - 11 - assumed they were there for some other meeting. The union contingent moved to the other room on the third floor, but, shortly thereafter, the two COs arrived as well. The union group went out into the hallway. Ms. Beaulieu returned to inquire of the COs as to the reason for their presence and then reported to her trade union colleagues in the hall that the COs were there for the same meeting. The union representatives caucused in the hallway, engaging in no further direct conversation with the COs. The grievor concluded that the employer had improperly invited the COs to attend a union-employer meeting which the COs had no (union) mandate to attend. In any event, the union contingent decided that they would not, in these circumstances, participate in the meeting and proceeded to leave. The two COs remained in the room. [35] Downstairs and on their way out, the union team encountered the two OM16s and conversation ensued, some of which has already been adverted to. It was in this conversation that the grievor expressed the view that the employer had improperly invited two anti-union COs to attend the union-management meeting. This conversation was taking place two floors below the floor on which the COs had remained. Mr. Barnes’ written account indicates that he saw one of the COs standing in the breezeway, two floors above, and, although not initially noted in his report, he later recorded that in a subsequent conversation he told that CO that he thought she had heard the conversation (the COs response to that was not recorded). Similarly, Ms. Narburgh’s report indicates that she thought she saw the CO on the breezeway two floors above. She also recorded that she (and Mr. Barnes) thought the CO had heard the grievor’s comment from her position two floors above. Ms. Lucier’s notes, which rely, in turn, on reports made to her by Messrs. Webster (the Institutional Training Manager) and St. Louis (the Deputy Superintendent) (neither of whom were witnesses to the events) makes no mention of the CO on the third floor breezeway and what she did or did not overhear. The CO in question was the subject of an interview by the investigator appointed in this matter. The lengthy investigator’s summary of that interview makes no mention of the CO having heard the grievor’s comment. And, like the two OM16s, the CO did not testify. - 12 - [36] In the result, while there is no question that the grievor employed the epithet of “anti-union” to describe one or both of the COs in his conversation with the OM16s, I am unable to conclude that the comment was made in the presence of, directed to, or heard by either of the two COs. The aftermath of the meeting [37] The scene then shifted back to NBJ where Ms. Lucier began to receive reports of what had transpired. She met with four of the participants, the two OM16s and the two COs. It was largely on the strength of the conversation with one of the COs (to whom I shall refer as “DS”), that she concluded to both seek to have an investigation commenced and to immediately suspend the grievor. [38] DS neither testified nor authoured any document received in these proceedings. Thus, our singular source of what DS may have communicated to Ms. Lucier is the evidence of the latter. And that evidence (all of it hearsay, at least with respect to the truth of anything DS may have said) came in two forms. There were some (more or less contemporaneous) documents Ms. Lucier prepared, as well as her viva voce evidence, tendered some two years after the events in question. The largest bit of documentary “data” comes from notes Ms. Lucier prepared on February 22, 2013, part of which described her exchange with DS the previous day. That portion reads: A short time later. I asked her if we could talk. She entered my office and I advised her, “I was sorry that she was subject to this event and that it is very unfortunate.” [DS] immediately became emotional and positioned herself away from the window as she saw [KM] in the hall. We both moved over to the other side of the room. She proceeded to tell me she had no issue with moving forward at the meeting and wanted to take part but she could, “not do it again”’ she could not deal with the ongoing bullying and harassment. I asked her what she meant by this. [DS] went on to say that, “Mike has private meetings. There was a time when a white t-shirt was placed on a cross with ketchup, which looked like blood on it with her name and [SG’s] name on the t-shirt. [DS] said, I have been shunned, doors closed on me, or doors not being opened.” [DS] said, he is a, “horrible man,” he threatens, bullies and intimidates if you are not one of - 13 - his followers. Most staff is terrified of him. She went on to say I have six years left and I am too tired to do this again, it has ruined my life, I was off sick due to Mike’s intimidation and threatening. He made my life a, “living hell.” She went on to say that she is a, “blue shirt” but could not do the things he told her to do, as she said this is about my ethics and I can’t do those things to management or any person (blue shirt or white). It simply isn’t right. [DS] went on to say that her friends ostracized her for fear of retaliation of Mr. Bisaillon and finally one day, one of them approached her and said that, “Mike told her it was ok that she could now talk to her.” [DS] said, “That is how much control he has.” [DS] said, “Paula [Narburgh] knows this as I looked at her today at the meeting, as she (Paula) was once part of the Mike Bisaillon…group. After listening to [DS], I informed her that we would not tolerate this type of behaviour and would deal with anything we became aware of. I told her this is unacceptable and we (management) take this seriously and will take action as everyone deserves an inclusive workplace. [DS] said, “Lou-Ann people are terrified, they wont talk for fear of him and what his followers will do.” I informed her that if there were any issues, to please notify me as soon as possible. At the conclusion, I asked her if she was ok and she responded she was. She then left the office and returned to her duties. [39] Of course, even as she was preparing these notes, Ms. Lucier had already taken the decision to suspend the grievor. The rationale for that was recorded in an “Employee/Other Information Report” which Ms. Lucier had prepared earlier the same day. In it, after brief reference to the aborted meeting, Ms. Lucier went on: Upon gathering further information from the managers and officers involved in this event, it was identified that there was [sic] several incidents highlighted involving Mr. Bisaillon allegedly bullying, harassing, intimidating and threating individuals in the workplace. It was noted, based on the information, that Bill 168 may apply. In consultation with Regional Office, Employee Relations and Human Resources, it was determined that Mr. Bisaillon would be suspended for five days with pay pending an investigation. [40] The comments attributed to DS are hardly flattering of the grievor. But to interpret them, as Ms. Lucier did, as identifying incidents of bullying, harassing, intimidating and threatening behaviour, thereby warranting the imposition of (what would become) a three-month (paid) suspension and the initiation of a formal investigation is at least somewhat questionable. - 14 - [41] Not a single piece of information pointed to with respect to any such allegation against the grievor had the specificity or particularity required to elevate it beyond the status of rumour. And to the extent the t-shirt incident referred to might have had the vaguest traces of substance, there is no dispute that had Ms. Lucier bothered to make the most elemental inquiries, she would have discovered that it referred to an event well over a decade old in which the grievor had no direct involvement and that related to political differences within the bargaining unit during the currency of a labour dispute. [42] I have reproduced all of the salient portions of the documentary evidence produced in relation to both the rationale for seeking a formal investigation and the documentation that was forwarded in support of and in the course of the resulting investigation. Any patent skepticism regarding the need for and basis of requesting the investigation is merely confirmed, if we jump ahead briefly in the chronology, by the results of the investigation itself. The investigator, on March 15, 2013, two days after interviewing DS forwarded an email to Katherine Kinger, the Ministry’s Director of Northern Region. It included the following: Despite my questioning, [DS] did not identify any specific person(s) who is currently employed who engaged in shunning; harassing intimidating etc. behavior. Most if not all her information references matters that are more than a decade old stemming from a labor dispute… I believe that I do not have legitimate cause to pursue a line of questioning with respect to those matters stemming from the 2002 strike with either the subject employee [the grievor] or three other employees who [DS] identified as having once engaged in these exclusionary measures but all of whom are now managers… Based on the lack of specifics, it my recommendation to narrow the scope of the investigation and focusing on what happened February 21, 2013, and what the subject employee both said and did that day; and if his actions were a contravention of the Statement of Ethical Principles (unprofessional etc.). If the subject employee admits to making the alleged anti-union remarks I will certainly then pursue why he feels the way he does; why made those remarks etc. I will also pursue his knowledge of how his suspension letter was posted on the union board and why etc. [43] That recommendation was accepted by Ms. Kinger. (In what is only one of a great many lacunae in the record, no documentary evidence was tendered in that - 15 - regard, despite the production request of the union and the Order of this Board.) In any event, Ms. Kinger (who struck me as far more even and candid in her evidence than Ms. Lucier) acknowledged that the investigator’s recommendation was an indication that DS’s allegations (whatever they may have been) were without foundation and completely groundless and that whatever discipline, if any, might result for the grievor would not be significant. [44] Moving even further ahead in the narrative, in another somewhat curious turn (though the parties made little of this), a draft of the investigator’s final report was forwarded to Ms. Kinger, with a copy to Bianca Rodriguez, who was then a WDHP advisor in the Ministry of Government Services (“MGS”). The investigator emailed as follows: Hi Kathy: As promised please find attached the investigation report. I have copied Bianca to ask the [sic] she take a quick review to make certain she is in agreement with respect to any W DHP findings and conclusions. I have marked this as draft because I also want an opportunity to provide it with one more proof read and in the event you have any feedback that I may want to include in the report. [45] No written response from Ms. Kinger was produced before me. But there is no suggestion that there was any material difference between the draft and the final version. Ms. Rodriguez did respond, however, as follows: The report looks good to me - and I agree that given the evidence there is no information to substantiate a WDHP violation, as the main complainant herself said she did not have recent facts/allegations against the respondent. [46] Returning to the conversation between Ms. Lucier and DS on February 21, 2013 and given their ultimate disposition, my description of the allegations can be limited to the following. DS’s reported comments were replete with pejorative conclusions regarding any alleged bullying, harassment or intimidation on the part of the grievor. They were, however, devoid of any particularity whatsoever; not a single incident - 16 - involving the grievor was outlined. And to the extent that any specific incident was referred to, it was over a decade old and did not necessarily involve the grievor directly or at all. (And the fact that it involved a labour dispute may even lend some explicative force to the union and the grievor’s view about DS’s attitude towards the trade union.) [47] Perhaps the most significant aspect of the interview was Ms. Lucier’s restraint. She is an experienced investigator, qualified as a Ministry Level II investigator. And yet she chose not merely to not cross-examine DS with respect to her allegations, she declined to even probe for the basics – no particulars were extracted, including when events may have transpired. She was content to respond to DS’s demonstrated emotional fragility and to register her (DS’s) apparent antipathy to the grievor. [48] DS neither wished to nor did she file any formal complaint against the grievor. However, based on the information before her, Ms. Lucier, on the same day as the aborted meeting, authored the following memorandum to Kathy Kinger (who was away on vacation at the time) and to Daryl Pitfield, who was acting in her stead: On February 21, 2013 a working group meeting was scheduled to discuss the ceasing of staff meals and reviewing the current day to day operational routines at the North Bay Jail. Prior to the commencement of the meeting Mr. Bisaillon (union president) became very vocal and refused to participate in the meeting advising management “there were non-unionist” in the room directing this at two correctional officers. Upon gather [sic] additional information from the involved parties it was discovered that there have been numerous incidents where Mr. Bisaillon is engaging in bullying, harassing, intimidating and threatening behaviors. It was reported that a number of staff at the North Bay Jail are fearful and terrified of him and fear reprisal if they do not conform to his direction. Based on this information it appears that Mr. Bisaillon may be in violation of Bill 168. Given, the evidence of this systemic behavior at the NBJ, I am requesting a level 1 investigation or an independent investigation under the WDHP umbrella. - 17 - [49] Although the memo is dated February 21, 2013, there is no documentary evidence to indicate when and how it was forwarded to its recipients, no clearly relevant email was produced and Ms. Lucier was unable to recall those precise details. However, the following morning Ms. Lucier sent a terse email to Mr. Pitfield which read: “Please see the attached, should you have any questions please feel free to contact me.” No attachments were produced. Mr. Pitfield responded immediately, advising that he was awaiting a call back from CISU and, shortly thereafter wrote: “I’ve spoken to Sandy this morning over the level one. Can you send all relevant documents to his attention.” No further email from Ms. Lucier in response to this was produced, but Ms. Lucier pointed to Mr. Pitfield’s last communication as the formal approval to initiate a level one investigation. [50] But if it took less than a full day to approve the level one investigation, the decision to suspend the grievor was completed within a matter of a few hours of the aborted meeting, after telephone conversation(s) that same day with a variety of people, including Mr. Pitfield and employer representatives from the Office of the Assistant Deputy Minister (“ADM”), Employee Relations and perhaps others. Ms. Lucier’s recollection of whom precisely she spoke with, singly or collectively and in what order and what specifically was said was far less than clear. No notes were taken or produced of these various conversations and nothing in the emails produced bear on the decision to suspend the grievor. [51] Two emails did issue in the wake of Ms. Lucier’s decision. One, sent at 1:50PM on February 21, 2013, was from Kacy Cumming, a Labour Management Liaison in the Office of the ADM, who wrote: In consultation with the email recipients, based on the available information paid suspension for M. Bissilione [sic] is supported. It is understood that you are currently collecting all the appropriate documentation and based on the above information you will be requesting a Level 1 investigation. We are able to assist with the crafting of the appropriate documentation. - 18 - [52] And five minutes later, Ms. Lucier received an email from her employee relations contact, which appears to have attached [no attachment was produced] a copy of the Ministry’s Prevention of Violence in the Workplace Policy. [53] As indicated earlier, the resulting suspension letter was delivered to the grievor the following day and cited the following “grounds” for the suspension: It has come to my attention that serious situations have occurred whereby you have allegedly participated in ongoing bulling [sic], harassing and threatening behaviour both within the workplace and outside the workplace. [54] And as further indicated earlier, with the possible exception of (equally unparticularized) allegations regarding what had transpired on the meeting day, these allegations were entirely devoid of any further specificity and were subsequently found by the investigator to be lacking in “legitimate cause” as later confirmed by the employer’s MGS WDHP advisor. A brief digression – two letters [55] Before moving on to deal with the aftermath of the suspension, I pause to reproduce and consider two other pieces of correspondence. On the same day, February 12, 2013, that the first meeting to discuss line meals was held with the union, Jesse Webster, an OM16 (who did not testify) authoured the following letter to Ms. Lucier: It has taken me a long time to find the courage to launch this formal complaint against Correctional Officer Bisaillon. Mr. Bisaillon has breached not only the Ministry’s “Statement of Ethical Principles”, but Bill- 168, and the Work Place [sic] Discrimination and Harassment Policy, for his ongoing bullying and harassment of the Operational Managers here at the North Bay Jail… I feel that I have needlessly been subjected to “systematic campaign” of - 19 - harassment from Mr. Bisaillon, who is the Local President of the Union (local 616) here at the North Bay Jail. This ongoing treatment has created an oppressive and intimidating work environment for me and my fellow managers. Mr. Bisaillon’s conduct has been undignified, degrading and manipulative, and his continued effort to paint managers as the enemy can no longer continue. His ongoing behavior has unnecessarily caused anxiety, nervousness and distress amongst the management team here at the jail and is hardly conductive [sic] to a positive and ‘safe working environment’. Mr. Bisaillon’s unwanted conduct has for the past several years been concealed under the guise of “union” activity and support for the “union”, but I can no longer ignore the physical and mental toll that it has had upon me and my fellow managers For the past eight or so years, Mr. Bisaillon has had an ongoing battle with the Operational Managers, as well as the senior management group here at the North Bay Jail. He has successfully ran [sic] several managers out of here, by manipulating the Acts, Regulations, and Grievance process to his liking, and has been suspended on several occasions for his actions [there was no evidence in the instant proceedings regarding any prior discipline imposed on the grievor]. As managers, there is an inherent part of the job that creates an “us” versus “them” mentality, but Mr. Bisaillon has pushed this to the furthest limits. We can no longer be walking targets for the Union and Mr. Bisaillon to use as their pawns, when things don’t go their way. It is my intention that the North Bay Jail and senior management, take the appropriate steps to implement any preventative measures to ensure a working environment free from the ongoing harassment we as managers have had to deal with. I feel that the North Bay Jail has a duty to provide a “safe” work environment free from harassment and bullying, and that failure to act on this complaint would amount to a contravention of its own policies (Statement of Ethical Principles WDHP/Bill-168) as well as the Health and Safety Act. I trust that you will make every effort to correct a situation that has been ignored for too long. As I am sure that Mr. Bisaillon will deny any such wrongdoing, a full investigation into his current and past behaviors is recommended. It is unfortunate that Unions are still run by people who think that old-style labour tactics will work in the modern world. I ask that you consider the magnitude of the “risk of harm” to the Operational Managers here at the North Bay Jail, and the gravity of the situation at hand should management not act on this complaint. - 20 - [56] I find this letter to be curious for at least three reasons. First, its timing: although it asserts eight years of union improprieties, it is apparently drafted on the very day that the first meeting was held with the union to discuss line meals. It is not at all clear (and Mr. Webster was not proffered to tell us) what the immediate impetus was for its submission. Second, it asks for the very same type of investigation that ultimately occurred (though clearly not as a result of this letter) and cites precisely the same statutory materials and employer policies relied upon by Ms. Lucier in seeking the investigation. Finally, and to the extent it is possible to compare the allegations of two people who did not testify, it bears a striking resemblance to the allegations attributed to DS, at least in the following respects. They both arrive at similar asserted conclusions and descriptions of the grievor’s impugned conduct yet are both utterly devoid of any specificity or particularity. I will return to this letter and its disposition later in the narrative. [57] The second piece of correspondence is an email forwarded to Ms. Lucier and to Roch St-Louis, the Deputy Superintendent, by Rob Barnes, one of the two OM16s who attended at the regional office on the date of the aborted meeting. The email bears that date and was forwarded within minutes of the decision to suspend the grievor. It reads in part: …I have been sitting here thinking about todays [sic] events and hoping we get through this. I am quite excited about a change in routine and gaining control of the facility. The information I have obtained from former employees to possibly assist our team is quite interesting and I believe helpful. …I for one have always been fortunate that I was never threatened or bullied directly by this union president however I can recall countless and countless meetings in the tiny OM office with staff. Staff coming in afraid, stressed and crying. There have been many staff that have told me they would vomit before they entered the jail as they were scared to fight and be ordered to act out against management. Each and every time I would attempt to have the staff document information they would refuse to talk about it again and would tell me they would just deny it if I shared it with my managers (for the record I did advise my managers). Many of the very same officers have either transferred out or resigned. The countless shifts changes with past managers in the office and attempting to support each other when dealing with this person. Again many managers have either - 21 - resigned or are off on sick leave or transferred or reassigned elsewhere because of this person… Lou Ann and Roch you are 100% correct we have to get through this and document, document and document. The point I am trying to make about is [sic] this person knows he was able to get away with his tactics for years and it is quite obvious he still believes this. The two and a half years or more when he was out of the facility was [sic] amazing. We were able to function as a team, staff wanted to come to work, staff were not afraid to come into the office to talk and willingness for working together for a change was there. Since he has returned to the above has ceased. [58] And while this email is little more than a footnote in the current narrative, it also warrants commentary. First, its timing is again curious. Although it purports to advert to events which may date back many years, it is difficult to ignore the fact that it was forwarded within minutes of the decision to suspend the grievor. Like Mr. Webster’s correspondence (and although Mr. Barnes clearly acknowledges to have never been threatened or bullied by the grievor), there is no hesitation in proffering unparticularized allegations. [59] There are further curiosities. The first paragraph, with its references to “gaining control of the facility” and the information obtained from former employees to assist “our team”, can only charitably be described as cryptic. Similarly, the later reference to the Superintendent and Deputy being “100% correct we have to get through this and document, document and document” invites further speculation about the nature of the discussion that generated the comment. [60] Mr. Barnes did not testify to clarify his statements and Ms. Lucier was equally unable or unwilling to do so. One possible inference to be drawn might be that the management “team” was engaged in a coordinated onslaught to target the union president. - 22 - The aftermath of the suspension [61] On his way out of the jail upon receiving his suspension letter, the grievor instructed one of the members of the local executive to post a copy of his suspension letter on the union bulletin board. He felt that union members ought to be advised about his suspension. [62] The letter did not remain posted for long. [63] In an occurrence report dated March 1, 2013, M. Cyr, an OM16, recorded that late in the day (approaching midnight) on February 22, 2013 he: …noticed a suspension letter addressed to Mr. Mike Bisaillon posted on the local OPSEU bulletin board. I did not remove the letter at this time as in the past (approximately years ago [sic]) removing something from the OPSEU bulletin board resulted in significant unrest in the institution. I advised the superintendent and deputy superintendent of the letter and requested advice on how to deal with it. [64] Mr. Cyr did not testify and the continuation of his narrative is left to surmise. For example, when he reported his observations to the Superintendent and what advice he may have received are not known. Similarly, neither do we have any explanation for the gap of a week between the events observed and the writing of the occurrence report. Two things, however, are clear – the earliest Mr. Cyr could have advised the Superintendent would have been just before midnight on the day the suspension was posted – Ms. Lucier did not testify that she was in the habit of being in the institution at that hour. Second, it would appear from his recorded text that he may have had a greater appreciation of the sensitivity union members might attach to the unilateral employer interference with materials posted on the union bulletin board than any other member of management demonstrated in this matter. - 23 - [65] On February 26, 2013, Jeff Lamothe, another OM16 (who was not called to testify), filed an occurrence report indicating the following: On Saturday, February 24 2013 at the North Bay Jail, I was the Sergeant on shift from 0600-1800 hours. During shift exchange, I was informed that Correctional Officer Mike Bisaillon had another officer post a copy of his suspension letter received from the Superintendent on the union board for all staff to read. The posting of this private and confidential information is viewed as further poisoning the work environment and influencing staff toward negative behavior. Under direction from the Superintendent I removed the letter from the staff room bulletin board. [66] Mr. Lamothe’s use of the phrase “further [my emphasis] poisoning the work environment and influencing staff toward negative behavior” was not the subject of any evidentiary elaboration. [67] Within a few days of the imposition of the suspension, an investigator was appointed. On March 11, 2013 she conducted a telephone interview with DS. Three days after that she wrote to Ms. Kinger, as described earlier, recommending – a recommendation that was accepted – that the scope of the investigation be significantly narrowed to focus only on the events of February 21, 2013, through the prism of the Employer’s Statement of Ethical Principles, and on the subsequent posting of the suspension letter on the union bulletin board. (I note that – apart from Mr. Webster’s letter – this is the first documentary reference to the “Statement”, a point to which I shall return.) [68] Just how the allegations regarding the posting of the notice on the bulletin board came to the attention of the investigator and became part of her investigation is something of a mystery. The record does not disclose what materials were forwarded to the investigator and Ms. Lucier’s evidence was less than clear on the point. The limited email exchange that was produced (which included no attachments) suggest that the information to initiate the investigation was forwarded on February 21 and 22, 2013, i.e. before Ms. Lucier was aware of the posting on the union bulletin board. And there is - 24 - simply no documentary evidence to explain when, how or why any information regarding the posting was added to the investigative mandate. [69] In any event, the narrowing of the scope of the investigation dramatically altered the landscape of what the employer viewed as the grievor’s impugned conduct. While possible consideration of the Employer’s Statement of Ethical Principles remained, the investigation was no longer focussed on the application of Bill 168 and the Employer’s Prevention of Violence in the Workplace Act or its Workplace Harassment and Discrimination Policy. [70] But while, as Ms. Kinger acknowledged, it was clear at this point that the discipline, if any, that would ultimately be visited upon the grievor would not be significant, the employer opted to maintain the grievor’s suspension and his prohibition on attending at the workplace (for what would be a period of a further two months), pending the completion of the investigation. Neither Ms. Kinger nor Ms. Lucier gave any serious consideration to returning the grievor to work at that time. They both appear to have viewed the matter as properly “out of their hands” – given that an investigation was in process, any change to the status quo should await the completion of that process. A return to Mr. Webster’s letter [71] It does appear, however, that the investigator’s recommendation did trigger some further action on Ms. Lucier’s part. I say appears because, again, the gaps in this particular evidentiary trail are quite significant. I return to Mr. Webster’s lengthy letter (set out above) to Ms. Lucier, dated February 12, 2013. Ms. Lucier was unable to provide any clear evidence regarding the receipt, handling or disposition of the concerns Mr. Webster was purporting to bring to her attention. There is no evidence that anything happened in response to this letter prior to the investigator’s “narrow the scope” recommendation. - 25 - [72] However, over a month after the date of the letter and on the Tuesday following the Friday recommendation (a recommendation Ms. Lucier acknowledged she “may” have seen), a single email (the only email produced which appears to bear on the letter) was sent to Ms. Lucier by Ms. Rodriguez (the MGS WDHP advisor). It describes its subject matter as “new case out of North Bay Jail” and reads in its entirety: As, discussed, please send me all the information pertaining to the Michael [sic] Bisaillon issue when you have a chance. [73] Ms. Rodriguez did not testify and Ms. Lucier was unable to provide any details as to the discussion referred to or anything she may have done, including any documentation she may have forwarded as a result. [74] The only other reference to this matter is a document titled “Record of Verbal Transaction” prepared by Ms. Rodriguez on April 8, 2013, recording the details of a conversation (the substance of which I need not review) she had with Mr. Webster. This completes the record in respect of Mr. Webster’s letter and nothing further appears to have resulted in respect of it. [75] Having regard to the limited information and testimony in respect of this matter and the significant amount of information the employer failed to proffer, I am satisfied that the proper inference to be drawn is that Ms. Rodriguez’s reference to a “new case” (occurring, as it did, well after the start of the investigation triggered by the events of February 21, 2013) was not a reference to the case already under investigation. And given her apparent subsequent contact with Mr. Webster, I am satisfied that it was Mr. Webster’s complaint which was the “new case” that was discussed with her by Ms. Lucier on or immediately prior to the March 19th e-mail. I have already commented on the curious timing of Mr. Webster’s letter. Equally curious is the timing of Ms. Lucier forwarding and/or discussing Mr. Webster’s complaint with Ms. Rodriguez, coming as it did, on the heels of the investigator’s recommendation to significantly narrow the scope of the investigation. - 26 - A change in the grievor’s status [76] I will shortly turn to the investigator’s final report, which issued on April 22, 2013. Some weeks prior, however, there was a change in the grievor’s status from “suspension with pay” to “paid administrative leave”, largely as a result of a conversation between Ms. Lucier and a trade union representative, Blair Pitfield (in order to avoid any confusion with Daryl Pitfield, the Assistant (and sometime Acting) Regional Director, I will henceforward refer to Blair Pitfield as “BP”). The significance, if any, of this difference in status appears to have eluded many. It does serve to highlight, however, the very different perspectives Ms. Lucier and BP (both of whom did testify) brought to their accounts of what transpired. [77] Both Ms. Lucier and Ms. Kinger were aware that the grievor was seeking election to a provincial union post. The grievor adverted to it in an earlier meeting with them both. Ms. Kinger’s acknowledgement was straightforward; Ms. Lucier’s was much more grudging, taking the time to insist that it was something mentioned to her just in passing, something to which she never gave a second thought. [78] The grievor was seeking (he was ultimately successful) a position as a member of the union’s central Executive Board. As part of the election process, a regional meeting was scheduled for Sudbury for a period that included Friday April 5, 2013 when a “bearpit” session was to be held with the participation of prospective candidates. That would require the grievor to travel to and participate in Sudbury on that day. However, under the terms of his suspension, the grievor was required to make himself “available to the institution or the investigator during administrative hours”. Should he be travelling to Sudbury and participating in the union event on the Friday, he would have been in breach of those terms. BP testified that his principal objective in intervening on the grievor’s behalf was to get him back to work. But the more immediate issue was to facilitate the grievor’s participation in the upcoming “regional” without exposing him to discipline for his lack of availability. And BP was the only one able to offer a plausible and relevant explanation for the possible difference in status as between “suspended with pay” and “paid administrative leave”. The latter apparently did not include the - 27 - requirement that the grievor make himself available during administrative hours, a condition that was repeated in each of the five successive suspension letters the grievor had received between February 22 and March 21, 2013 (the latter suspension effective until April 25, 2013). However, when the grievor’s status was altered to paid administrative leave effective April 5, 2013, the confirming email Ms. Lucier sent to BP (with a copy to the grievor) made no mention of any condition that the grievor maintain his availability. [79] Ms. Lucier saw the object of the same exercise quite differently – in fact it is difficult to understand that she and BP were parties to the same conversation. Ms. Lucier expressed the view that she was seeking to address BP’s concern that the optics of the grievor’s continued status on suspension could harm his electoral prospects. In his testimony, BP dismissed the claim that any such concern existed or was expressed as ridiculous. On the contrary, he testified that he had commented, facetiously, that by keeping the grievor on a paid suspension the employer was, effectively, financing his campaign. He also commented, perhaps only slightly less facetiously, that being on suspension did not pose any problem of electoral optics for the grievor – on the contrary, to establish and maintain an effective image as a trade unionist, one would need to be suspended by the employer at least once. [80] I have no hesitation in accepting BP’s proffered view over that of Ms. Lucier regarding the conversation and the purpose of the alteration in the grievor’s status. In coming to that conclusion, I accept that BP’s version is simply far more likely in all of the circumstances. I am also unable to understand how the change in the grievor’s status could possibly impact the perceptions of potential electors – that would require an appreciation of the subtle difference in status and an appreciation of its nuance that evidently eluded most of the participants in this process. It seems equally unlikely that it would be obvious or significant to union members. It is far more likely that the driving concern was simply to insure the grievor could participate in the upcoming electoral event without subjecting himself to possible discipline for breaching the terms of his paid suspension. - 28 - [81] In and of itself, this piece of the evidentiary puzzle presented to me is not one of tremendous significance. It is, however, yet another example that demonstrates the need to approach Ms. Lucier’s evidence with some caution. The investigator’s report and the employer’s disposition of the matter [82] I turn now to the investigator’s report. As we have seen, an advance draft copy was forwarded to Ms. Kinger and to Ms. Rodrirguez for comment on April 21, 2013. The report issued the following day. It is some 30 pages in length and culminates in the following conclusion: Having assessed all of the evidence the investigator finds on a balance of probabilities the allegation that MB violated the WDHP Policy by engaging in bullying, harassing and intimidating behavior is not substantiated. There is no evidence of discrimination based on any prohibited ground nor is there any evidence of personal harassment. MB, therefore, did not violate the Workplace Discrimination and Harassment Prevention (WDHP) Policy. Having assessed all of the evidence the investigator finds on a balance of probabilities that MB failed to act in accordance with the Statement of Ethical Principles by making the anti-union comments and by withdrawing his participation at a meeting because he judged his colleagues to be not worthy. Having assessed all the evidence the investigator finds on a balance of probabilities that MB is responsible for the posting of his suspension letter in the workplace, and in doing so potentially interfered with the investigative process. [83] By letter dated April 24, 2013, the grievor was summoned to attend an allegation meeting. Attached to the letter was a copy of the conclusions just cited above. (A copy of the investigator’s report was not provided to the union or the grievor until sometime after the commencement of the instant proceedings.) And even the single page of the conclusions that was provided to the grievor in advance of the allegation meeting, had its page number (29) redacted. The grievor would therefore have been unaware of the actual length of the report.) - 29 - [84] I have previously set out the allegations, as presented to the grievor at that time. For ease of reference, I set them out again: 1. You violated the Ministry’s Statement of Ethical Principles through your actions at an implementation meeting on February 21, 2013. Specifically, you failed to maintain working relationships based on mutual respect, dignity and cooperation. 2. You directed another employee to post your suspension letter in the workplace, and in doing so potentially interfered with an ongoing investigative process. [85] The allegation meeting took place on May 2, 2013 and on May 21, 2013 a letter, headed “NON-DISCIPLINARY LETTER”, issued to the grievor. Portions have already been set out. It read in part: … [After setting out allegations #1 and #2 above] During the meeting you were provided with the opportunity to respond and provide any mitigating factors into the allegations. You began by responding to allegation #1 that you attended the meeting as the local union president and that you were aware that other people were attending and assumed there would be other management representatives, but not other bargaining unit employees. You indicated that you felt disrespected. You further advised that as the union president you want employees that are engaged with their local and the union. You then provided the analogy, “as a coach coaching a hockey team, I want hockey players,” In reference to allegation #2, you indicated that you had someone post the letter on the board in the lunchroom, as this was a past practice. You advised that other suspension letters have been posted on the board and you have never been told this is wrong. You further advised that members need to know what the employer is saying about their union president. When asked if you had anything else to add, you advised that you felt that you did nothing wrong. You also advised that you did not yell, swear or say anything negative about [DS]. after taking into account all of the available information, I find both allegations are substantiated. As a result, after having an opportunity to carefully review all the facts and evidence before me, the information you provided at the meeting and your employment history, I have decided to issue you this non-disciplinary letter of counsel. This letter of counsel is to remind you of the obligations of the standard of conduct expected of all - 30 - employees, specifically the obligation to maintain working relationships based on mutual respect, dignity and cooperation. I would also like to advise you that posting of any types of private and confidential letters of this nature is not to be [sic] posted in the workplace in the future, unless you have the approval of the Superintendent… The grievor returned to work shortly after receiving this letter. [86] Six grievances were filed and made exhibits before me. The first, dated July 11, 2012 (GSB File No. 2012-2847), bears no relationship to the evidence in these proceedings and, apart from being filed, was not referred to by the parties. To the extent it was even properly before me, it is dismissed. The last two, both dated July 6, 2013 (GSB File Nos. 2013-1559 and 2013-1560), relate to a pay dispute about which we heard little evidence. These appear to have ultimately been resolved, though perhaps not with the dispatch the grievor might have preferred. They were not referred to in argument by the union and I need not refer to them any further. It is the three grievances (all dated June 12, 2013) filed in the aftermath of the process that culminated in the “non-disciplinary” letter which are at the heart of the instant case. And while these grievances are variations on common themes, it is undoubtedly the allegation that several individuals, including Ms. Lucier “abused the WDHP policy and the Section 22 process [I take this to be a reference to section 22 of the former Public Service Act, which has been overtaken by the current Public Service of Ontario Act and, in particular, section 36 thereof] as a means for anti-union animus against myself as local President and also as a way to prevent me from acting in my capacity as local president”. I note, however, that one of those three remaining grievances (GSB File No. 2013-1557) was directed specifically at the conduct of DS, alleged to be an abuse of the WDHP process. As we have seen, DS did not engage or otherwise initiate the WDHP process (in that regard, the union was labouring under a misapprehension which the employer chose not to clarify). The union did not seriously pursue any of its claims against DS’ conduct before me and this particular grievance is dismissed. - 31 - The positions of the parties. [87] The dispute between the parties in this case is far more factual than legal. And while there are some facts in dispute, it is ultimately, the proper characterization of those facts which is at the centre of the case. The union asserts that the employer’s actions in this case were, at least in part, improperly motivated. This, claims the union, was not a good faith exercise of management rights, application of employer policies or any other employer prerogative to administer the workplace. Rather, its actions were part of a deliberate effort to undermine the union and the union president by removing the latter from the workplace on the flimsiest of possible grounds and maintaining his exile even after it became readily apparent that there was no significant basis for any discipline whatsoever. [88] For its part, the employer asserts that even if there were irregularities or errors in the manner in which it handled the matter, this does not lead inexorably to the conclusion that it was motivated by anti-union animus. On the contrary, the employer points to aspects of the evidence which, it asserts, are inconsistent with any possible conclusion of improper motive. [89] It is clear that the union’s case will stand or fall on the determination of the employer’s alleged improper motive. [90] Counsel advanced thoughtful, reasoned and impassioned pleas on behalf of their clients. I will now summarize those submissions, recognizing that the process of condensation will not provide a full recitation of these able submissions. The union [91] The union began with a comprehensive review of the facts. In my determination of the facts, as set out above, I have, without exception, accepted the union’s version of the facts and I have detailed, where necessary, why I have chosen, in the face of - 32 - certain conflicts, inconsistencies or evidentiary gaps to prefer the factual matrix advanced by the union. I will not therefore review the facts here. [92] As part of its submissions, the union also reviewed the relevance of and manner in which the employer applied the terms of some of its own policies. I have found the union’s submissions in this respect to be compelling and I will return to this analytic exercise later in this award. [93] The union commenced its legal submissions by referring to cases that have considered issues of bullying and harassment in the workplace as well as the application of the WDHP policy, questions of the application of employer policies more generally and the overriding obligation to act in good faith which attaches to all contractual relations (see, for example, OPSEU and Ministry of Community Safety and Correctional Services, 2014 CanLII 48013 (Briggs); OPSEU (Brown) and Ontario, GSB #2010-2489 (Briggs); OPSEU (Bousquet) and Ministry of Natural Resources GSB No. 541/90 (Gorsky); OPSEU (Howes) and Ministry of Transportation and Communications, GSB No. 356/82 (Verity) (upheld on judicial review); and Bhasin v. Hrynew, 2014 SCC 71). [94] In the Brown case Vice-Chair Briggs considered the meaning and significance of the word harassment as described by Arbitrator Laing in Re Province of British Columbia [1995] 49 L.A.C. (4th) 193 [cited at para 95 of the Brown award]: This is a serious word, to be used seriously, and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person and it can be fairly said, “You should have known better.” … harassment is a serious subject and allegations of such an offense must be dealt with in a serious way, as was the case here. The reverse is also true. Not every employment bruise should be treated under this process. It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the - 33 - workplace, so as to trivialize those cases where substantial workplace abuses have occurred. [95] This admonition, the union asserts, is particularly apt in the instant case. DS was clearly the major source of the information that led Ms. Lucier to initiate the investigation. And yet DS did not wish to seek to file any complaint. And, more significantly, the information in Ms. Lucier’s possession was utterly devoid of any particularity whatsoever. Ms. Lucier took no steps to remedy that state of affairs, by probing for any further or specific information from DS. She chose instead to invoke the WDHP process, the employer’s Prevention of Violence in the Workplace Policy and launch a full fledged investigation. In this context the investigator’s ultimate rejection of any allegations which Ms. Lucier may have attributed to DS is hardly surprising. Ms. Lucier has thereby succeeded in (to borrow the words of arbitrator Laing, just quoted) “cheapening” and “trivializing” the integrity of a process which serves a critical workplace function. Her conduct begs the question: “Why?”. The obvious response: her motives were not pure. [96] The union reminds us that the exercise of protected union activity features prominently in this case, a point which is thrown into stark relief once all of the ill-fated bullying and harassment allegations are, as they ought to have been from the outset, eliminated. The grievor, in his remaining conduct with which the employer took issue, was acting, at all material times, in his capacity as union president. And it was the proper exercise of associated rights which led to his ultimate chastisement. Indeed, the union asks me to conclude, it was the exercise of those rights which the employer sought to interfere with by its conduct in this case. [97] Those rights are not merely important; they are fundamental to the proper functioning of the labour relations regime. Indeed, so important are these rights that they are thrice protected: the collective agreement, in Article 3, prohibits “discrimination or harassment practised by reason of an employee’s membership or activity in the Union”. The Labour Relations Act (which is incorporated into the Crown Employees Collective Bargaining Act, which, in turn, governs these parties’ labour relations) in Sections 70, 72 and 76 provides multiple protections for legitimate trade union activity - 34 - and, in particular (in s. 70) prohibits any employer interference in the administration of a trade union. And I was referred to a number of cases which demonstrate that the Charter of Rights and Freedoms also protects important rights associated with union activity. [98] The union asks me to conclude that the employer’s treatment of the union president was motivated, at least in part, by anti-union animus. The entire exercise was designed so that the employer could exhibit its ability to exercise control over a strong union leader. The employer’s conduct would have had a chilling effect on the workplace with serious implications for the trade union’s representational abilities. Relying on well- established jurisprudence from the Ontario Labour Relations Board (see, for example, Valdi Inc. [1980] OLRB Rep. Aug. 1254 at para 24) the union adopts the view that the impact of unfair labour practices is seldom confined to economic matters. This is a factor I am urged to take into account in fashioning an appropriate remedy. [99] The union asks me to grant various remedies including: • a declaration that the employer has breached the collective agreement as well as the Labour Relations Act (No issue was raised with respect to my authority to declare a violation of the Labour Relations Act) • a cease and desist order • a removal of the “non-disciplinary” letter from the grievor’s file • an apology from the employer • a posting in the workplace • both compensatory and punitive damages The employer [100] The employer begins its submissions by agreeing that the proper - 35 - characterization of its motive is the central issue in the case. It comments though that despite the union’s effort to portray events as a senior management conspiracy to to target the grievor and teach him a lesson, its (the union’s) description of events alternated between motifs of Machiavellian intrigue and Keystone Cops foolishness. Those motifs are difficult to reconcile one with the other but, in any event, submits the employer, neither is accurate. [101] The proper characterization of the facts is relatively simple. Ms. Lucier was confronted with an emotional presentation from DS whom she perceived as both fearful and fragile, alleging ongoing bullying and harassment. The employer, as it is required to do, commenced an investigation. Reasonable people might differ on the need to have done so in the manner that the employer did. But while the employer may have been somewhat overzealous in its approach, that does not lead to a conclusion that it acted out of anti-union animus. [102] While also acknowledging that a tainted motive can be sufficient for a finding of anti-union animus, the employer submits that mistakes or other improper conduct do not necessarily establish such an improper motive. The union claims a deliberate effort to interfere with the grievor’s union activities, to wrest control of the NBJ back from the union and to perhaps even interfere with the grievor’s electoral campaign. The employer denies any such objectives and asserts that, in fact, its conduct negatives the existence of any such motive. It points to five specific facts to demonstrate how measured its response was, facts which it says are inconsistent with any deliberate motive to improperly target the grievor. [103] First, it claims expedition (a relative term) resulted from the manner of selection of the investigator. Ms. Kinger testified that, rather than using the usual CISU investigators (a choice which, given the backlog of investigations would have resulted in an investigation period of some six months), an investigator was selected from the office of the ADM. [104] Second, if the objective of the exercise was to continue to punish the grievor, the - 36 - employer would never have agreed to the investigator’s interim recommendation that the scope of the investigation be significantly narrowed. [105] Third, Ms. Lucier testified that she followed up on the progress of the investigation, something she would not be likely to do if her only interest was to keep the grievor suspended for the sake of doing so. [106] Fourth, Ms. Lucier agreed to the union’s request to alter the grievor’s status to facilitate his participation in union elections. [107] Fifth, despite ultimately finding that the grievor had acted inappropriately, the employer determined not to issue any formal discipline but to merely provide a non- disciplinary letter of counsel. [108] All of these facts, asserts the employer, are inconsistent with any conclusion that anti-union animus tainted the employer’s motive. [109] Essentially, Ms. Lucier was presented with information that led her to conclude that serious allegations of ongoing bullying and harassment were being made. That conclusion, whether or not correct, was a reasonable one. And, in those circumstances, it was reasonable, indeed, the employer had an obligation to initiate an investigation. Placing an employee who is the subject of such allegations on paid suspension is a standard employer practice. The union president was not treated any differently than any other employee would have been in similar circumstances. Similarly, the three- month period that was required to complete the investigation and return the union president to the workplace was consistent with the time such a process normally requires. Indeed, the evidence suggests that the period was on the short end of the typical range. Again the grievor was not treated differently than any other employee. On the contrary, by virtue of the investigator engaged and the resulting (relative) expedition that resulted, the grievor may have been treated more favourably than other employees. [110] The grievor’s electoral ambitions were a matter of complete indifference on the - 37 - part of the employer. Ms. Lucier’s evidence was that she had little interest in trade union politics or knowledge of trade union hierarchy. I am asked to conclude that neither the grievor’s existing position nor his future aspirations in the union played any role in the employer’s decision making. [111] The employer also asserts that the events of February 21, 2013 are, in the end, not material. The grievor was never disciplined and the central question in the case relates to Ms. Lucier’s decision to launch the investigation. [112] And in determining whether Ms. Lucier’s decision was reasonable, I am asked to consider a number of authorities which suggest that the employer has a duty to investigate even stale complaints or those which may appear to be without merit (see OPSEU (Grievor [pseudonym “Brown”]) and the Crown in Right of Ontario, GSB 2010- 2489, March 15, 2015 (Briggs); Harriott v National Money Mart, 2010 HRTO 351 (CanLII); Abdullah Yousufi and OHRC and Toronto Police Services Board, Keith Bradshaw, Ed Stewart and Brian Ward, 2009 HRTO 351 (CanLII); Moffatt v Kinark Child and Family Services, [1998] O.H.R.B.I.D. No. 19; and Budge v Thorvaldson Care Homes Ltd. [2002] M.H.R.B.A.D. No. 1). Decision [113] Having considered the evidence, as set out above, and the submissions of the parties, I am satisfied, on a balance of probabilities, that the employer and, in particular, Ms. Lucier, failed to act in good faith in this matter. More specifically, I am satisfied that her motives were tainted by anti-union animus. A reading of the facts as set out warrants this conclusion. I will shortly highlight some of the factors in the evidence that have led me to this conclusion. [114] Before I do so, however, there are two further areas I will review. If the facts as already set out were not sufficient (and I believe they are) to lead to the conclusion of improper employer motive, a consideration of the manner in which the employer - 38 - invoked and improperly applied its own policies points to the same conclusion. After reviewing some of these policies and procedures, I will turn my attention to the “non- disciplinary” letter issued by the employer. WDHP [115] To the extent that this policy was invoked by the employer, the only possible basis for its application resides in the information provided to Ms. Lucier by DS. We have already seen how the paucity of any specific particularized allegations led the investigator to the inescapable conclusion that there was no basis upon which to proceed with respect to these allegations (a conclusion endorsed by the employer’s WDHP representative). In my view, that same conclusion ought to have been obvious to Ms. Lucier from the outset. And neither am I impressed by her failure to seek out even the slightest amount of detail in relation to the allegations proffered by DS. To decline to do so and to rely on her own failure to gather information to then seek to launch an investigation while exiling the union president from the workplace is hardly a demonstration of good faith. [116] I have not ignored the authorities pointed to by the employer on this point. While there are obvious salutary purposes achieved in inquiring into employee complaints, even where employees do not wish to file formal complaints, even where complaints are stale and perhaps even where complaints appear to have a dubious foundation, it is not clear to me that level of “best practices” necessarily rises to the level of legal obligation in the facts of this case. I note that, with one exception, the cases relied upon by the employer concern the application of Human Rights legislation. And with all of the various employer postures that may have been assumed during the course of the events before me, there was never any serious suggestion of a breach of the Ontario Human Rights Code. I also note that in the only decision of this Board [Brown] pointed to by the employer, the arbitrator (at para. 117) describes with approval precisely what it is Ms. Lucier did NOT do in this case: …In meeting its obligations to maintain a safe and healthy workplace reasonable steps must be taken including investigating employee complaints. In this instance, when the grievor made her major complaints - 39 - known, [her manager] Ms. Graham investigated. According to her evidence, which I have found credible, she spoke with various employees involved in the particular complaints. She made inquiries, monitored behaviour and coached employees when necessary. Those steps were a reasonable response. [117] Ms. Lucier escalated the process without taking the time or care to determine what precisely DS’s complaint was and without seeking any relevant information in relation to it from any other source. Instead, in the face of little concrete information, she chose to suspend the grievor and banish the union president from the workplace. [118] But if the employer’s hasty invocation of the WDHP process was problematic, neither did its consistent and persistent failure to follow the procedural dictates of its own policy serve to boost confidence in its true motives. [119] For example, section 9.21 of the policy provides that “complainants must provide sufficient information to facilitate a preliminary assessment”. Even if the information provided to Ms. Lucier by DS had been sufficient for this purpose, no preliminary assessment was undertaken, certainly not one that conforms with the requirements of section 9.40 of the policy. Neither sections 9.37 nor 9.20 were complied with – these require complaints to be filed in writing within six months of the alleged incident(s). And section 9.38 sets out the particularity required in any complaint, a level of specificity that was nowhere close to achieved before the union president was shown the door. And finally and perhaps most significant of all of the procedural failings, I note that section 9.11 provides: Respondents and complainant must have access to sufficient information about the allegations and responses of other parties and witnesses to allow effective participation in the process. [120] Given the lack of particularity that attended the information from DS, it is perhaps less than surprising that the employer was unable to comply with this requirement at the outset. But even at that stage, the grievor’s conduct on February 21, 2013 was - 40 - purportedly of concern to Ms. Lucier. Yet that was not the least bit apparent in the cryptic “grounds” set out in the initial suspension letter which it will be recalled was limited to the following information regarding the grievor’s alleged improprieties: … serious situations have occurred whereby you have allegedly participated in ongoing bulling [sic], harassing and threatening behavior both within the workplace and outside the workplace. [121] For the first two months of his suspension, this was the full extent of the information provided regarding his impugned behavior. Even after the investigation was complete and the report of April 22, 2013 had been filed, the grievor received little more information. As detailed above, of the 30 pages of the report, only a single one (with its page number redacted) was provided to the grievor. And it was only with the invitation to attend the allegation meeting that, for the very first time, anything resembling particularized allegations were provided - it was then alleged that the grievor: • violated the Ministry’s Statement of Ethical Principles through his actions at an implementation meeting on February 21, 2013. Specifically, he failed to maintain working relationships based on mutual respect, dignity and cooperation. • directed another employee to post his suspension letter in the workplace, and in doing so potentially interfered with an ongoing investigative process. [122] Although some particularity is finally provided it is difficult to see how the allegations just set out are within the same parameters as the original allegations, set out three paragraphs above. And indeed, the second event referred to (the posting of the suspension letter) had not yet occurred at the time the initial suspension was imposed. [123] The employer’s proclivity to divulge little in the way of information did not end there. It continued to decline to even provide a copy of the investigator’s report until after these proceedings commenced. The employer’s consistent procedural violations of its own policy coupled with the manifest unfairness to the grievor in the extreme - 41 - rationing of pertinent information make it more difficult to be confident of its good faith. [124] And one other point in respect of withholding information merits comment. The grievances in this matter were filed shortly after the grievor’s return to work in May 2013. In one of those, dated June 12, 2013, the complaint is that DS “has abused the WDHP process by knowingly making false and vexatious … accusations against” the grievor. Of course, while DS may have been the source of the limited unparticularized information the employer seized on to get the investigation ball rolling, DS never filed or sought to file a complaint or to invoke the WDHP process against the grievor. With the filing of the grievance in June 2013, the employer would have been aware of the misapprehension under which the union was labouring. And despite Ms. Lucier’s frequent appeals, at least in her testimony, to the values of transparency and inclusion and despite her professed concern for the welfare of DS, she took no steps whatsoever to disabuse the union of its false impression. It was not until well over a year later, when these proceedings commenced in earnest, that the union was first made aware that DS was not responsible for initiating any complaint against the grievor. In a workplace where sentiments about the union may be strong, it might have served DS well not to have been falsely perceived as the chief instigator of a complaint against the union president. [125] It is difficult to reconcile Ms. Lucier’s professed concern for DS with her failure to exhibit any sensitivity to her position after the filing of the grievance. This is simply another one of the many reasons to exercise caution in accepting the employer’s assertion of its own good faith. Prevention of Violence in the Workplace Policy [126] This is a Ministry Policy. It is difficult to see how this Policy ever bore any real relevance to these proceedings. The definition section of the policy provides: Workplace Violence is defined as the attempted or actual exercise and - 42 - physical force by any person so as to cause injury to another person and will include any threatening statements or behavior including property damage which gives that person reasonable cause to believe that you are she is at risk of injury Verbal abuse or harassing behavior that have that does not give an employee reasonable grounds to believe that the employee is at risk of injury is not defined as workplace violence but maybe subject to the provisions of the OPS Workplace Discrimination and Harassment Policy (WDHP). [127] There is no dispute that “at the end of day” this policy has no application. In my view, however, its invocation at the front end of the process was based on the same type of vague and unparticularized assertions that were really more in the nature of opinions and conclusions without the benefit of any supporting foundation. Ms. Lucier was content to initiate the investigation process on the basis of that limited information and to exclude the grievor from the workplace. Statement of Ethical Principles [128] This is a Ministry Document which outlines “what is expected of all employees and Ministry volunteers in the delivery of services”. Under its terms, employees are, among other things, to “fulfill our responsibility to colleagues by fostering and maintaining working relationships based on mutual respect, dignity and cooperation.” [129] I will return to the dubious application of this document later. For the moment, I merely note that I am at pains to see precisely how or when this document came to figure in this process. There is nothing in any of the extremely limited documentation that was disclosed or, indeed, the viva voce evidence that was presented that refers to this document as forming part of the investigator’s mandate. (I do note that a reference to the document is found in OM16 Webster’s complaint – the reader will recall that this “complaint” did not form part of the investigator’s mandate and only seems to have been revived only to quickly disappear at the time of the “narrow the scope” email.) In the - 43 - context of the investigation, the first reference to this policy appears in the investigator’s email recommending a narrowing of the scope of the investigation. She wrote: Based on the lack of specifics, it is my recommendation to narrow the scope of the investigation and focusing on what happened on February 21, 2013, and what the subject employee both said and did that day; and if his actions were a contravention of the Statement of Ethical Principles (unprofessional etc.). [emphasis added] [130] This reference to the Policy begs many questions and points, yet again, to the dearth of a documentary record. None of the employer witnesses who did testify indicated that they had been involved directly in selecting the investigator or in setting out her mandate. They seemed to be of the view that Mr. Pitfield (who, at the time, was covering for Ms. Kinger in her absence) may have performed that task. But Mr. Pitfield did not testify and there is no documentary evidence setting out that mandate. And neither is there any clear evidence of any sort to demonstrate what communications, if any, took place between the investigator and the employer regarding the nature and scope of the investigation. The only such documentation consists of the investigator’s emails (the one recommending narrowing the scope of the investigation, the other forwarding a draft copy of the final report for the employer to review) and an email from Ms. Rodriguez (whose participation in the matter seems to have been somewhat marginal) indicating that the draft report “looks good to me”. Surprisingly, apart from the latter, not a single email of any substance was produced from any employer representative directed to the investigator. Thus the specific provenance of any concern regarding the Statement of Ethical Principles is uncertain. [131] The investigator’s “narrow the scope of the investigation” email was (subject to the reference in the Webster letter) the first time that any reference was made to the Statement of Ethical Principles. (It was also, as previously discussed, the first documentary evidence of the inclusion of the grievor’s posting of his suspension on the union bulletin board in the investigator’s mandate.) - 44 - The “non-disciplinary letter” [132] Whether or not this letter is accurately described as non-disciplinary or whether it represents disguised discipline is an issue I need not determine. In either event, its issuance was inappropriate. I agree, to some extent, with employer counsel’s submissions that what actually transpired on February 21, 2013 is, in the scheme of things, of little or no importance (perhaps not an unsurprising submission from the party who chose to call no direct evidence on point). And it is true that the central issue in the case is, indeed, a characterization of the employer’s motive. Very serious allegations were raised against the grievor. However, at the end of the day, when all the dust (to which virtually all allegations against the grievor turned) had settled, all that remained, both for the investigator and the employer (as of March 15, 2013 when the former proposed restricting the scope of the investigation), were the allegations regarding the union’s early exit from the February 21, 2013 meeting and the grievor’s posting of his suspension letter on the union bulletin board. [133] With respect to any alleged violation of the employer’s Statement of Ethical Principles, firstly, I am unable to see how this document has any application to the grievor’s conduct on February 21, 2013. The “Statement” “outlines what is expected of all employees … in the delivery of services”. And while there may sometimes be an elusive line between conduct as an employee and conduct as a union official (where the employee can don either hat), there was no such ambiguity on February 21, 2013. The grievor was acting solely and exclusively in his capacity as union president; he was neither scheduled to work nor paid for his time on that day. Thus, I have no hesitation in accepting (as Ms. Kinger, once again distinguishing herself from Ms. Lucier, ultimately did) that the “Statement” had no application (and therefore could not have been violated). [134] But even if that conclusion is viewed as overly technical, I am simply unable to see how the grievor’s conduct was otherwise improper or worthy of critical attention or comment. The investigator’s conclusion that the “grievor judged his colleagues to be not worthy” when he refused to attend the meeting to which they had been invited is both - 45 - true and misleading. There is no question that the grievor felt that the two bargaining unit employees invited by the employer ought not to be attending a union-management meeting. But that is not so much a comment on their personal “worthiness” (whatever that may mean) as it is on their undisputed status. Similarly, there is no doubt that past conflicts around the role of the union could hardly have enhanced the union’s comfort at these employees’ attendance. And, finally, the grievor did not dispute the use of the phrase “anti-union” in relation to the two employees. This, however, was not yelled and certainly not in the direction of the employees concerned. And there is no evidence that either of the employees even heard the statement. In my view, in a seasoned labour relations context which one would have thought NBJ to be, this was, at worst, a graphic comment which would not cause any significant pause in the context of a union- management discussion. [135] With respect to the second and final allegation which survived the employer’s process, I am similarly of the view that there was no hint of impropriety in the grievor’s conduct. If any apology is merited, it is not one that need come from the grievor. [136] The mere existence of a union bulletin board in the workplace is not an unfettered license for the union to post any type of material it desires. At a minimum, any postings would be expected to have some nexus with the union and its lawful function. One would also expect such postings to be neither defamatory nor inflammatory. Thus, there may well be circumstances in which an employer is justified in exercising control over what is posted on the bulletin board. No such convincing justification was advanced by the employer in this case. [137] First, if the union president, as the grievor testified he did, wishes to communicate the fact of his suspension to his members by posting the employer’s letter to him on the bulletin board, I see nothing presumptively inappropriate. The information seems relevant, germane and of interest to employees in their capacity as union members. Any privacy interests the grievor might have in the contents of the letter are obviously waived by virtue of his decision to post it. The privacy interests the employer might have in the contents of the letter are much less obvious to me and were not - 46 - effectively articulated. [138] Similarly, the assertion (and employer conclusion) that the posting potentially interfered with the coming investigation is not apparent. First, there was no suggestion or evidence indicating any actual interference with the investigation occurred. I note that employer witnesses acknowledged the same information might have been communicated to union members in any one of a number of alternate ways (at a union meeting, via email, through personal conversations outside the workplace) without any difficulty. Why its communication in the workplace and via the union bulletin board made it problematic is not clear. And, finally, no matter the number of times witnesses repeated the refrain that posting the letter potentially interfered with the investigation, the meaning of the assertion or just how the investigation might be impeded was not convincingly explained. The employer was obviously unhappy with the union’s transparency. [139] In my view, not only was the grievor’s conduct beyond reproach, the employer’s conduct, in interfering with the union’s right to post information for its members was a breach not only of Article 3.2 the collective agreement but also of (at least) section 70 of the Labour Relations Act, 1995. [140] Thus, with respect to the “non-disciplinary letter”, I am satisfied that if it was, in fact, disciplinary, there was no just cause for such discipline. Equally, if it was not disciplinary, I am satisfied that there was no basis for its issue. Indeed, it appears to me that this was little more than a feeble and unsuccessful effort to maintain or create some credibility associated with the employer’s process. I therefore direct that this letter be expunged from the grievor’s file. Did the employer act in bad faith? [141] I have already indicated my conclusion that the employer did not conduct itself in good faith in the manner in which it treated the union president and, in particular, in its - 47 - hasty imposition of the suspension and exclusion from the workplace. [142] For the sake of clarity, I will highlight (the list is not necessarily exhaustive) the aspects of the evidence which, when taken together, call the employer’s motive into serious question. These include: • The surreptitious invitation of bargaining unit employees with no union mandate and with a known antipathy to the trade union to a meeting which the employer knew or ought to have known was viewed by the union as a union-management meeting. This was deliberately provocative. • Ms. Lucier’s frequent testimonial appeals to values of transparency and inclusion contrasted with her actual actions, including her discomfort at the attendance of a steward (whose otherwise uncontested status she continued to challenge in her testimony without any basis for such challenge ) at both February meetings in lieu of an executive member; describing the February 21st meeting as one in which attendance was completely voluntary but open to all who wished to participate despite not providing employees (apart from those specifically invited) with any information about the planned meeting until after it had concluded; her failure, even after the grievances were filed, to, in the interests of transparency and perhaps even DS’s peace of mind, disabuse the union of the mistaken notion that DS had initiated a WDHP complaint against the grievor. • The striking lack of relevant evidence presented by the employer, including the absence of documentary evidence and the failure to call a significant number of persons who would have had first hand knowledge of many of the relevant facts: - 48 - i. With respect to the February 21, 2013 events, we did not hear from any employer witnesses with direct knowledge (neither the two OM16s who attended nor the two bargaining unit COs the employer had invited); ii. With respect to any employer initiatives and the relevance of and relation thereto of the missives authored by OM16s Webster (on the date of the first meeting) and Barnes (on the date of the second), we heard from neither. In the absence of their testimony, there is a whiff of conspiracy extant; and iii. With respect to the employer’s initiation and management of the investigative process, we did not hear from Daryl Pitfield, who other witnesses pointed to as taking a lead role (certainly in the initiation and even in the maintenance) of the process. There were other, admittedly less central, potential witnesses who did not testify. But even just the absence of the six individuals herein identified gives rise to negative inferences and the conclusion that their evidence would not have assisted the employer’s case. • Lack of particulars is a theme that ran throughout these proceedings. And in what are perhaps two sides of the same coin, the employer itself never really secured the kinds of particulars to warrant the speedy launch of a full-fledged investigation. And, by extension, it was never able (apart from what made its way into the “non- disciplinary” letter) to provide the grievor, even up to the commencement of these proceedings with a hint or a clue of the specific facts alleged against him. • Ms. Lucier’s willingness to “interpret” the words of others, whose words were not heard in viva voce testimony. For example, her willingness to offer her views regarding what others “understood” - 49 - about who would be attending the second meeting or, more significantly, her conclusion that the grievor presented an imminent risk of violence, an assertion she (unlike her colleague, Ms. Kinger) appeared to be prepared to cling to, however tenuously, throughout the process, when there was little, if anything, in the documentary record or other viva voce evidence to support such a conclusion. • Ms. Lucier’s failure to direct either of the COs involved in the February 21 events to prepare any occurrence reports or other written reports pertaining to those events coupled with her failure to make any inquiries whatsoever of the union representatives who had been in attendance. • While even the basis for launching the investigation was tenuous at best, no convincing reason was advanced for, three weeks later – when, given the “narrow the scope email” it was clear that no significant discipline, if any, would result – maintaining the grievor’s suspension and prohibition on any attendance in the work place for a further period in excess of two months. • Ms. Lucier sounded a number of false notes in relation to her attitude toward the union: i. I have already referred to the provocative and surreptitious manner of constituting the February 21st meeting. The effect of undermining the union in the eyes of at least some of its members could hardly be a surprise. ii. The chasm between her evidence and that of BP regarding the change in the grievor’s status is one that is difficult to bridge. But the suggestion that the employer was being generous and co- operative in enhancing the grievor’s electoral prospects simply - 50 - eludes plausibility. iii. It was, however, the general attitude that Ms. Lucier attempted to convey which was perhaps most disingenuous. She made every effort to project an aura of benign neglect toward the union, its affairs and activities. In describing the conversation in which the grievor advised her (and Ms. Kinger) of his intention to run for the union’s executive board, Ms. Lucier made pains to convey just how trifling a bit of information that was, one which barely permeated her consciousness. And she also claimed throughout (in an argument reprised by counsel) that the grievor was treated just the same as any other employee would have been in similar circumstances, as if that alone would exonerate the employer from any ill effects the union and its members might suffer from the forced exile of their chief representative. The effort to project an attitude of benign neglect conveyed rather an air of rehearsed indifference. If the grievor’s status as union president was not part of the matrix considered by the employer in dealing with the issue (something about which I am highly skeptical), it ought to have been. Asserting that the grievor’s union status played no part in the employer’s decision-making is simply another way of saying the employer took no account of that status. Holding the union president out of the workplace for three months (particularly when, after the first three weeks, it was clear that no significant discipline, if any at all, would be the result), presents elements (that would not be present in the case of a regular CO) that the employer ought to have considered very carefully. The employer, on its view, failed to do so; on the union’s view the grievor’s status as union president was not the least neglected by the employer. In the context of this case, either conclusion is troubling. [143] Having regard to all of the foregoing, and in the absence of any coherent rational - 51 - explanation for the employer’s curious conduct in matters both directly and indirectly related to the salient events here in question, I am satisfied that the employer was motivated, at least in part, by anti-union animus. Ms. Lucier was the chief, perhaps exclusive, architect of the project. She organized the February 21, 2013 meeting in a fashion guaranteed to trigger the union’s opposition and to undermine its position. She was, shortly thereafter, presented with non-specific and unparticularized allegations against the union president. Rather than completing or initiating a preliminary assessment, as contemplated by the employer’s own WDHP policy, or seeking any further information, she seized the opportunity to very quickly launch a full-fledged “independent” investigation and to, even more quickly, banish the grievor from the workplace. And when, three weeks later, any real need (if there ever was one) to exclude the union president from the workplace had, effectively, disappeared, no consideration was given to facilitating or even permitting his return. Rather, his enforced lack of contact with his workplace constituency continued for a further two more months. [144] I am satisfied that the employer’s treatment of the grievor was a breach of Article 3.2 of the collective agreement and of sections 70 and 72 of the Labour Relations Act, 1995. I am also satisfied, in all of the circumstances, that the employer’s unilateral removal of the notice (i.e. the grievor’s letter of suspension) posted on the union bulletin board was also a violation of Article 3.2 of the collective agreement and of section 70 of the Labour Relations Act, 1995. Further considerations regarding remedy [145] The union has asked for a broad range of remedial responses in this case. I have already made certain declarations. I turn next to the two remedial invitations offered by the union which I decline to accept. [146] I will not issue a cease and desist order. There may well be occasions upon which such a remedial response is warranted. The instant case is not one. Repeated violations of the collective agreement may prompt arbitrators to grant cease and desist - 52 - orders. The instant bargaining relationship (i.e. that between OPSEU and the Crown) is a mature one. And as a Vice-Chair of this Board, I can take notice that the parties’ bargaining relationship, while it can be as adversarial as any other one might encounter, is typically characterized by good faith and professionalism on both sides. These parties consistently exhibit an impressive ability to resolve the labour relations issues which separate them. Thus, the behavior in this case appears to be an aberration. As such l see no need, certainly no current need, to issue a cease and desist order. [147] Neither am I prepared to order the issuance of an apology. One may indeed be warranted and it might well assist the cause of harmonious labour relations, a factor the employer may wish to consider. However, I have serious doubts about the efficacy of a forced apology and decline to direct one. [148] In my view the union’s request for a posting is, in some respects, the most obvious one in the circumstances of this case. It is no doubt difficult to assess and quantify the nature of the damage caused by the employer’s violations. There was, for example, no claim of any economic loss occasioned by the employer’s breaches. But harkening back to Valdi (supra), we ought not be surprised that the impact of unfair labour practices is not restricted to the economic realm. Indeed, in this case the chief impact appears to be entirely non-economic. The grievor’s salary was maintained for the duration of his absence from work. But it was his very enforced absence (whether salaried or not) that was a significant harm effected by the employer. The grievor was deprived of his ability to attend, as he would in the normal course, to union business within NBJ. The members whom he represented would have seen their chosen representative exiled from their midst for a substantial period of time. This was the manner in which the employer interfered with the administration of the trade union. And a similar conclusion pertains to the employer’s interference in the posting on the union bulletin board. [149] Again, there was no assertion that this improper employer interference resulted in specific individual outcomes resulting in economic loss. To the extent the damage in the case might be described as symbolic, it appears to me that a remedy which consists - 53 - of an effective communication from the employer to the union and its members is warranted. I see no need, however, to require a posting in locations beyond NBJ, where the events in question transpired. [150] Accordingly, I hereby direct that a notice, in the form attached to this decision, be posted in a location(s) where it is likely to come to the attention of all bargaining unit employees at NBJ. The notice is to remain posted for a period of 60 consecutive days. [151] This brings me to a consideration of whether damages are an appropriate remedy in this case and, if so, the quantum thereof. The union seeks compensatory damages in the amounts of $5000 to be awarded to the grievor and $50,000 to be awarded to the union. In addition, it seeks a further $50,000 in punitive damages to be awarded to the union. [152] I have reviewed the cases relied upon by the union including: • Re Canada Post Corporation and Canadian Union of Postal Workers (Corporate National Grievance) (2011), 204 L.A.C. (4th) 4 (M.G. Picher), where compensatory (all of which were readily quantifiable items of economic loss) and punitive damages were awarded in respect of the union’s conduct of an illegal strike; • Greater Toronto Airports Authority and Public Service Alliance Canada Local 0004, 2011 ONSC 487 (Ont. Div. Ct.) – a partially successful judicial review of the arbitrator’s award (see (2010), 191 L.A.C. (4th) 277 (Shime)); • Re Limo Jet Gold Express Ltd. And Public Service Alliance of Canada, Local 05/21081 2001, 171 L.A.C. (4th) 28 (Larson); • Canada Post Corporation and Canadian Union of Postal Workers 2013 BCCA 108 (B.C.C.A.) (a decision of the B.C. Court of Appeal allowing an appeal from a judicial review and restoring the decision of the arbitrator who had awarded a total of $30,500 in compensatory and punitive damages where the employer had breached provisions of both the Canada Labour Code and the collective agreement where the employer had held “regional forums” with bargaining unit members regarding working conditions and benefits); • Re City of Calgary and Canadian Union of Public Employees, Local 38 - 54 - (2013), 239 L.A.C. (4th) 55 (Smith), a case where a total of some $850,000 was awarded in compensatory damages, the largest portion of which was compensation for economic loss. The case involved a series of sexual assaults, which the arbitrator concluded had serious and life altering adverse impacts on the grievor who was, in the wake of the events, totally disabled. The arbitrator declined, however, to award punitive damages, concluding that the compensatory damages awarded were sufficient to accomplish the purpose of retribution, deterrence and denunciation normally associated with the award of punitive damages; and • Re City of Toronto and Canadian Union of Public employees, Local 79 (2012), 215 L.A.C. (4th) 112 (Randall) a job posting case in which the grievor was awarded $4000 in general damages as a result of the employer’s violation of certain largely procedural guarantees set out in the collective agreement. [153] The suggestion that an arbitrator has the authority to award compensatory damages flowing from the breach of a collective agreement is hardly surprising. Frequently, those damages are tied to readily quantifiable economic loss. There is no such loss in the instant case. However, as the cases referred to amply demonstrate, the absence of economic loss is not a bar to an award of damages where the breach of the collective agreement has caused harm. And neither is any difficulty in the quantification of such damages a basis for avoiding the exercise. [154] In the instant case, the employer’s conduct damaged the reputation of and interfered with the grievor and the union’s ability to represent its members in at least three respects: • By acting in a deliberately provocative manner by inviting bargaining unit members with no union mandate to a meeting the union reasonably understood to be a union-employer meeting; • By seizing a perceived opportunity (that resulted from or at least followed upon the initial provocation) to hastily suspend the union president and banish him from attending at the workplace (in any capacity) where there were little, if any, grounds for the suspension and clearly no grounds for it during the last two of its three months’ duration; and • By interfering, unilaterally and without justification, in the union’s legitimate efforts to communicate with its members via the union bulletin board. - 55 - [155] In the circumstances, I am satisfied that it is appropriate to award compensatory damages to the grievor in the amount of $5000.00 and to the union in the amount of $20,000.00. This amount will also create a meaningful incentive for the employer to respect its legal obligations. [156] The union’s claim for punitive damages is more complicated. First, I note that the treatment of punitive damages by the arbitrator gave the reviewing court in GTAA some pause. While the court found, as a general proposition, that it was reasonable for the arbitrator to have concluded that he had the jurisdiction to award punitive damages, it was troubled by the arbitrator’s failure to explicitly find the breach of an independent actionable wrong, something that is required before punitive damages may issue. The precise shape of such an independent wrong may not be crystal clear. Indeed, the court observed that, at least in the case before it, there was room for “serious debate” as to what constitutes a separate actionable wrong. In the instant case the union points to the employer’s breach of the Labour Relations Act as the breach required before an award of punitive damages can issue. There may be some irony in this submission. The union pointed to the multiple contractual and legislative protections that apply to the rights it seeks to vindicate in the instant matter. It is thus the union’s suggestion that there is some overlap (if not complete identify) between the various protections in question. In view of my conclusion on this branch of the case, I need not pursue this issue any further. [157] As the court also observed in GTAA, referring to decisions of the Supreme Court of Canada (at para 117), punitive damages should “receive the most careful consideration and the discretion to award them should be most cautiously exercised” [citations omitted]. [158] There can be no question that the employer’s conduct in this matter was serious and worthy of rebuke. This is not, however, as in some of the cases where punitive damages were considered (though not always awarded) an example of conduct which has resulted in life altering serious adverse impacts on the grievor. Neither is it a case where the employer has engaged in prolonged and repetitive breaches. - 56 - [159] In all of the circumstances, I am satisfied that “objectives of retribution, deterrence and denunciation” (as described by the Supreme Court of Canada in Whiten v Pilot Insurance, a case decided outside the labour relations context and cited by the Court in GTAA at para 120) will be accomplished through the award of the compensatory damages and the workplace posting directed herein. I therefore decline to award punitive damages. Conclusion [160] To the extent set out herein, the grievances are allowed. [161] I hereby declare that the employer has violated the provisions of Article 3.2 of the collective agreement and of sections 70 and 72 of the Labour Relations Act. [162] I hereby direct the employer to: a) Remove the “non-disciplinary letter” dated May 21, 2013 from the grievor’s file; b) Post the appended notice in the workplace in the manner set out herein; and c) Pay the sum of $5000.00 to the grievor and $20,000.00 to the union as compensatory damages for the employer’s breaches. Dated at Toronto this 20th day of May 2016. Bram Herlich, Vice Chair Appendix Crown Employees Collective Bargaining Act NOTICE TO EMPLOYEES Posted by Order of the Grievance Settlement Board Pursuant to a Decision and Order of the Grievance Settlement Board (hereinafter the “GSB”) and in order to comply with the policies and provisions of the Crown Employees Collective Bargaining Act (hereinafter referred to as “CECBA”) we hereby notify our employees that: After a hearing in which both sides had the opportunity to present their evidence, the GSB has found that we violated CECBA and the collective agreement in our treatment of Michel Bisaillon and the union (OPSEU). The GSB has ordered us to post this notice. WE WILL NOT discourage membership in or representation by the union. WE WILL NOT interfere with the lawful and legitimate activities of the union and its agents or officers in the representation of its members. WE WILL deal exclusively with the legitimate agents and officers of the union in all matters pertaining to collective bargaining. WE WILL NOT, absent any legitimate justification, interfere with notices posted by the union on its bulletin board(s) at the North Bay Jail WE WILL make Michel Bisaillon and the union whole for the damages they have suffered in accordance with the decision of the GSB. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Per: (Authorised Representative) Dated May 20, 2016 This is an official notice of the GSB and must not be removed or defaced. This notice must remain posted for 60 consecutive days.