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HomeMy WebLinkAbout1993-0884.Carducci.95-10-24 .. I- i ~ ONTARIO EMPLOYES DE LA COURONNE ":" < CROWN EMPLOYEES DEL 'ONTARIO _ r. GRIEVANCE COMMISSION DE 1111 SETTLEMENT .. REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARfO_ M5G lZ8 TELE,PHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO _(ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 '-- GSB # 884/93 OP8EU # 93E130-134 IN THE MATTER OF AN ARBITRATION I Under THE CROWN. EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Carducci et al) Grievor - and- The C~own in Right of Ontario (Ministry of Health) Employer BEFORE: A Barrett Vice-Chairpe~son E Seymour Member M. Milich Member -- /\ FOR THE M MacKinnon GRIEVOR K Waddingham Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Smyth EMPLOYER Counsel Genest, Murray, DesBrisay, Lamek Barristers & Solicitors HEARING July 11, 1994 March 8, 9, 10, 27, i995 June 23, 1995 ---- - -- D E CIS ION -^ ~ ( j..J -- I The grievors are five Security Officers employed by the Queen Street Mental Health Centre M Carducci, B Cwenar, J Krol, T Kulik and J Patterson The five were given disciplinary suspensions of from one to four shifts each in March, 1993, essentially for unauthorized entry into the day care centre which is situated on the premises The day care centre was started up in the Fall of 1988 by George Brown College which trains its students in early childhood education there George Brown leased space from the Q S M H C which in turn agreed to provide housekeeping and security services for the day care. There is a board of directors comprised mainly of parents who are staff at Q S M H C This arrangement was unknown J to the grievors at the relevant times They simply thought the day care centre was part of the health centre ~ There are three doorways into the day care centre accessed from two different hallways Two of the doors into the day care have manual locks and the third has a coded key pad entrance The hallway doors lock with electronic key pads and an overriding key system During day care hours 7 ob a.m. to 5 30 p.m , Monday to Friday, the parents can access the centre through the electronic key pad entrances The codes are changed periodically and only the parents and staff are giv~n the numbers Only the day care staff -, have access to the manual keys The hallways outside the day care centre are locked at night and the key pads are overridden by a key ) I 2 ~ system to ensure that no parents can ent.er after hours The security staff have a key to enter the hallways which they are supposed to patrol a:l;ter hours but they do not have a key to the day care centre itself, nor are they supposed to know the key pad codes If the Security Officers find a door to the day caJ:"e unlocked after hours, they can go to switchboard where all Q S M H C keys are kept, get the key, check out the .area, then lock it up and return the key to switchboard When Security Officers find a door unlocked that should be locked they should make a note of it on their daily activity reports and issue the 1 person occupying the space an insecure premise repo'rt We heard evide~ce from Ms Break, who has been chair of the ) and is a bargaining board of directo~s of the day care since 1990, unit staff m~mber at the health centre Sh~ testified that right , from the beginn,ing the -day care centre had problems with Q. S M H C staff obviously gaining access to th~ centre afte,r hours. There were numerous theftsI people were found sleeping inside and there was evidence of eating and smoking The thefts were the most ~ problematic and most persistent problem Peo~le were taking food, cutlery, cups, plates, bulk cleaning supplies and personal items j belonging to staff members The day care centre .j.s a non-profit operation and always runs on a deficit, which must be made up by parents through fund-raising or an increase in fees The day care director, Ms Schmidt, contacted the Manager .of Security, Mr Frost, on several occasions asking him to ensure the ----- - '~ 3 premises were secure and the entries stopped Ms Schmidt sent memo · after memo to Mr Frost but security never improved One of Ms Schmidt's memoranda to Mr Frost dated December 5, 1991, stated "It is apparent that someone with key access is entering the child ) care after closed hours It would be helpful to us to a) inform any of your new staff that this is an off limits area unless emergency and b) please have your personnel do a check of the east hallway to make sure no one else has somehow unlocked the code door " By June, 1992, matters still had not improved and Ms Schmidt I wrote a much stronger memo to Mr Frost, which is reproduced below " MEMORANDUM To Mr Bob Frost From Kelly Schmidt Date June 1, 1992 Re Security At our last meeting in April, I informed you that your security personnel were discovered using the child care centre as their sleeping quarters during the night shift I was disturbed by this finding, but more so, was aggravated by the fact that while your staff were entering the unauthorized area .they were leaving ther doors unlocked and sometimes ajar behind them The unlocked doors 'created a haven for clients seeking quiet corners to hide in I find this quite disturbing coming from personnel who's (sic) mandate is to maintain a secure environment at Q S M H C for both clients and staff At that meeting you assured me that you would take care of the problem Since that meeting my staff have apprehensively opened the child care centre each morning not knowing what or who to expect This does not make fora secure working environment ) At this time, please be aware that the problem still exists My staff have kept records of the days the door ~ 6 ~ union steward, but t~ey were not told what-the interv~ew was about Unfortunately, under the circumstances, the housekeeping staff were intercviewed first and they spread alarms and fears throughout the security staff. The grievors were told that they were to be fired; \ that people would be arrested, and that there were videos showing them in the day care centre, so they should be very careful about J answering any questions about their presence in the day care centre Their steward, the grievor Mr Patterson, suggested they ~ be vague in giving their answers One by one on February 18-, 1993, the grievors we~e brought in for their interviews, and the following written statement was read to them by Mr Sloot "There have been allegations made regarding the uh~uthorized entry of security staff into the children's day care centre I have called this meeting in order to clarify these allegations and to provide you with an opportunity to respopd to them I have some questions that I will be asking you and I will be writing down your responses At the end of the meeting you will be asked to review your responses and you will be able to mak.e any corrections or changes, if necessary I will be asking you to sign the statement indicating your agreement with the wording You may have a copy of your statement to 'take with you " They were then asked the following questions "Questions 1 During the past three months have you been inside the children's daycare centre after hours? ~-_._--- ~-- 7 If response to question #1 is yes, please answer the ! following (If respond no, please advance to question #3 ) 2 (a) How did you gain access to the dayc~+e centre? (b) Please explain the reason for being in the daycare centre (c) Did you log your entry into the daycare? 1 [The interviewee was then shown the tape ] 3 Can you identify this person? r \. I 4 Please describe the actions of the person on the tape 5 Do you have any other comments you wish to make regarding this tape?" Following these' interviews, where the answers given were brief and sometimes vague, Mr Sloot referred to attendance schedules and daily activity reports to confirm that the Officers were on duty on the days in question and to see if they had logged t~eir entrances into the day care centre Of the five grievors, only one had logged an insecure day care premise report and one had mentioned patrolling the day care area Next Mr Sloot called disciplinary meetings for all -grievors on March 3, 1993 In attendance at these meetings were Mr Sloot, the Associate A~inistrator of the Q S M H C , a human resources I i I ~ 8 .' representative, the grievor and a anion representative Mr Sloot gave each of the grievors another opportunity to explain the circumstances of their presence in the day care and to review their daily activity reports No one provided an explanation for not logging the visits and no new reasons were given for being there One grievor, Mr Kulik, insisted from the start that he could not identify the person on tape No one gave an explanation for looking in the refrigerator Subsequent to these meetings Mr Sloot ~ determined the discipline that he felt each was entitled to and the grievors were informed of the suspensions and the reasons therefor the following day by letter We will deal with the individual circumstances of each of the grievors below Mr Sloot testified generally about -security p;r-oc::edures at Q S M H C Each Security Officer carries about ten keys One is a general access key which opens wards, tunnels and corridors Another is a master key that opens office qreas and administrative areas There is a maintenance key for fan rooms and electrical rooms, etc There are additional keys in the security office for other areas, with !3. list that is not always up-to-date There are some areas none of these keys will access, such as administrative and managerial offices, pharmacy, medication rooms and the day care, approximately 100 in total Keys for these areas are kept at the switchboard and can be signed out by Security Officers and others Apparently no one on staff has a key to the pharmacy or to another leased area in the Q S M H C , METFORS, which is operated by the Clarke Institute of Psychiatry It was the evidence of Mr I I CJ I 9 Sloot that if a Security Officer does not have a key for an area, '!s that means it is an unauthorized area for him or her to enter except in the case of an insecure premise or suspected entry or criminal activity The Security Officers should know that if they do not have a key, they should not enter that area except in the above-noted exceptional circumstances All of the Security Officers testified that they had never been told about "unauthorized areas" and they felt it was their duty to patrol the entire Q S M H C except for the pharmacy and METFORS They were usually unaware that they did not have a key for any given area until they found they were unable to open the door with the keys on their person or the keys in the security office Sometimes locks were changed, so that what they once had a key for, they would discover they no longer had The requirement to go to switchboard to obtain a key for some areas did not strike any of the grievors as meaning that these were "unauthorized areas". There was no written policy or directive concerning unauthorized areas All of the grievors were surprised to learn that the day care centre was an unauthorized area None of the grievors had a discipline record "- Furthermore, all of the grievors testified that their daily activity reports were more or less detailed depending upon individual personalities, that some carried notebooks while others did not, and that they had never be~n criticized for lack of detail in reports or not carrying notebooks, despite there being a pol~cy \ Q 10 that notebooks should be carried None of the grievors knew that ! the day care was leased space and none knew that they were forbidden to-enter it Some of the grievors had been given the key pad code by day care staff or parents None of the grievors were told by Mr Frost or anyone else about the persistent complaints from staff about theft and unauthorized entry into the day care In addition to the discipline each grievor received, all but Mr Kulik were charged with theft under $1,000 00 by the police at the behest of the day care staff Mr Joseph Krol was the first grievor to testify at our hearings He was given a one-shift suspension for the reasons set out in his discipline letter, to wit- .. You were shown on tape to be in an unauthorized location and your presence in the Day Care Centre was recorded on the necessary log and an insecure premise form was filled out as required in the procedure One the area was deemed unintruded, you should have vacated the area ensuring that the entrance doors were secure You re-entered the kitchen area, -accompanied py another security officer who engaged in pilfering items from the refrigerator Even though you initially had a legitimate reason to go in the Day Care Centre, your complicity cannot be condoned .. Mr Krol testified that he started his employment at Q S M H C at the end of June, 1992, as an unclassified Security Officer Prior to that he had security experience at two other Toronto hospitals and with other organizations When he started his job he was shown around the Q S M H C by Mr Taylor, his shift If! 11 supervisor He was not told anything special about the day care i' centre The only restricted areas he was told about were the pharmacy and METFORS He was never told "If you do not have a key it is a restricted area " He generally found out what he did or did not have keys for by trying his keys If they did not work, he would go to the security office and examine the list of extra keys there If that did not help, he would go to switchboard and obtain the key Sometimes he would sign it out at switchboard, other times not Sometimes the switchboard operator just handed him the key or pointed him to the key cabinet He did not ~now the day care was leased and run by outside management He did not know about any complaints made by day care staff regarding thefts and unauthorized entries Mr Krol produced the security procedures manual which has a sample daily activity report in it which contains a notation "check day care centre" On the day in question when he was videotaped, he did everything exactly as he thought he was supposed to He found the day care door insecure, so went in to check around Everything "- seemed to be in order so he tried to lock the door with his keys but found he could not He then went to switchboard and asked for a key but was told by the operator that she did not have one Then he went to the key cabinet in the security office looking for the key and could not find it Next he notified a fellow Security Officer, Mr Patterson, and asked him what he should do He and Mr Patterson decided they had better go back to the day care centre and check it out again because it had now been unattended for one- , I ~ .I 12 I -<J' half hour Mr Patterson suggested that housekeeping staff might I have a key and they eventually found some housek~eping staff who had a key and agreed to lock the door Mr Krol testified that he checked the kitchen area on bbth his first and second visits The videotape reveals Mr Patterson opening the refrigerator door and appearing to take something out Mr Krol said he did not notice this at the time-. He also could not recall Mr Patterson putting on a latex glove, which the tape reveals he did, altfuough he said that he and Mr Patterson have often talked about latex g):oves , I Apparently the_day care staff have better gloves than the security staff and the security staff often complain about theirs Mr Krol noted that he had logged the insecure premise correctiy and filled out the proper insecure premise report He said that if he had the whole thing to do over again, he would not do anything differently He was charged, along with the other gr~evors, with theft under $1,000 00, and he had to attend court six times, even though the charges against him were eventually dropped He did 'have to make restitution to the day care centre for a share of the cost of renting the video camera, as did the other grievors The only reason he agreed to do that was because he had found out that he would have to pay his own lawyer if he went to trial Mr Krol feels that his reputation at the Q S M H -C has suffer~d as a result of the criminal charge and the discipline, which are widely known throughout the Q S M H C Mr Sloot testified that all of Mr Krol's actions were perfectly correct until he entered the day care the second time ~ 13 ( v He should not have done that, nor should he have allowed the second Security Officer to open the refrigerator door and take something out However_, Mr Sloot was not aware of Mr Krol's difficulties '-- in locating a key and the time that elapsed wh~le he was in search of a key It is proper procedure to re-check the unsecured area when it has been left unattended for one-half hour Mr Krol testified that he did not notice or remember Mr Patterson looking in the refrigerator and perhaps removing something, and we accept his evidence Considerable time had lapsed since the incident and inconsequential actions of a fellow Security Officer would not likely be noted or stored in memory I On all of the evidence, we agree with Mr KrQl that he did nothing wrong on the day in question, in fact he followed the most . "- correct procedure of any of the grievors in attending to an insecure premise His discipline must be rescinded and all mention of it removed from his record He must be repaid for the lost shift The next grievor to testify was Ms Bernadette Cwenar She also started at Q S M H C in June, 1992, as a recent graduate of the law enforcement program at Sheridan College She too was shown around the Q S M H C by her shift supervisor, Ms Gerardi, and was given no instructions about authorized or unauthorized areas other than that the pharmacy and METFORS were unauthorized areas Her I supervisor showed her the day care centre and instructed her how to turn the twq locks required to open the hallway doors Her I I ,~ 14 c supervisor did not mention anything about not entering the day care centre S4e has made notations on her daily activity reports, such as "patrolled day care area", and no one has ever criticized her ~ for doing so She was given the key pad code to the day care centre by other staff at the .Q S M H C and she had entered and checked out the day care centre on earlier occasions She thought she had keys to all areas of the Q S M H C except the pharmacy and METFORS She has looked at the key list in the security office in the past to discover which ones they have but has not always found the list to be accurate She thought the reason all keys were kept I at switchboard was so that other staff coulq use them as well, and it was easier to have them at switchboard than in the security office SwitchbQard has all of the keys that security has and more Prior to this discipline_, Ms Cwenar was not aware that there had been any problems with respect to theft or unauthorized entry into the day care area Ms Cwenar's video was taken on December 12, 1992 Her daily activity report for that day noted "patrolled day c~re area" at 10 55 a m The tape showed her entering at 12 28 P m., and she accounted for the discrepancy in timing by saying that she does not carry a memo book and makes up her daily activity report at the end of the day with guessti~ates for time entries The procedure manual says that entries are to be "reasonably accurate" as to time, and she tries to remember chronologically where she has been during the day when she prepares her log at the end of the shift She is shown on the video opening the refrigerator door, and she testified : , 15 that she did not recall doing that until she saw the video As to '-' why she opened the refrigerator, she said "I was just curious, it used to have a padlock on it and now it didn't, but it still had a padlock holder. I picked up a package of cookies, looked at it, then put it back, but I didn't take anything " Ms Cwenar testified that even when she was shown the video and told she had made an unauthorized visit to the d~y care, she still did not know she did not have the key On the dfiy in question, she and her partner, Mr Carducci, both knew the code to the key pad so did not try using a key Ms Cwenar too was charged with theft under $1,000 00, and that charge was withdrawn after she hired her own lawyer She too has suffered a loss of reputation in the Q S M H C Furthermore, the existence of the charge, even though it was withdrawn, apparently disqualifies her for two years from being accepted into the police force, which is her career goal Ms Cwenar recei ved a two-shift suspension for the reasons set out in her discipline letter as follows II Your Daily Activity Report does not ind,icate that there was any purpose for your entry into the Day Care Centre on th~ above date and time, ie, insecure premise, break and enter, defective fire alarm system, or vandalism You refused to acknowledge that the inside of this premise is a restricted area even though Security Personnel do not have keys for this area It has also been verified that the key for the Day Care Centre was not signed out or in according to procedure, by any Security personnel on the date in question J I .- 16 I ~ failed to record your whereabouts, I 0 You you incurred a ! breach of trust and failed in your responsibility as a i Security Officer to comply- with the duties and ~esponsibilities of your po~ition II Again we find that Ms Cwenar had a reasonable bel~ef that she did nothing wrong on the day in question She ,did not know she was not suppc;>sed to patrol inside the day care centre, she logged her entry, although at an incorrect time, and opening a refrigerator door out of curiosity does not strike us as a disciplinable offence At this point in the evidence we were drawn to the conclusion that a molehill had been allowed to grow into a mountain because of Mr Frost's apparent disregard of the day care centre I s many earlier complaints By the time Mr Sloot took over as Manager, he was unaware of these past complaints and was of course surprised and chagrined at the extraordinary lengths -the day care was required to go i~ order to preserve its -own security Mr Sloot had not trained a,ny of the ~ gr ievors so could not know what their .subjective perception of authorized and unauthoI:"ized areas was There were no written policies in this regard It is understandable that the day care staff and board of directors wante4 significant action taken once they had gone to the expense and trouble of "7 getting evidence on videotape, and given the lack of earlier response by the security department It is unfortunate that Mr Sloot was not apprised of the problem when he arrived on the scene because we expect that he would have taken the complaints seriously and dealt with them through strict and unequivocal instructions to -..- ~ 17 security staff By February, 1993, it was too late to deal with the .~ legitimate day care concerns by simply issuing instructions The videotapes, dark and shadowy as they are, lend a sinister air to rather ordinary activities Discipline had to follow On all of the evidence, we cannot find that Ms Cwenar knew that she was doing something wrong on the day in question Discipline was not appropriate in those circumstances Accordingly, she shall be reimburs'ed for the lost pay, and the- discipline removed from her record Mr Marco Carducci, the third grievor, was videotaped twice in the day care centre, once on December 12, 1992, with Ms Cwenar, and again on December 30, 1992, with someone whose identity is not revealed on the film Mr Carducci was given a four-shift suspension because he had entered the day care twice without logging it or having a good reason and because he refused to identify the person on the second tape He opened the refrigerator door each occasion and fiddled through the contents the { on on second occasion but did not take anything Mr Carducci too knew the key pad code but did not admit that in his' first interview with Mr Sloot At that time he said he had just exp~rimented with various combinations and got the right one, because he was curious about the area Mr Carducci, like all of the other grievors, insisted that he was not aware that the ,day care was a restricted area He started with the Q.S M H C in 1988 and originally had a key to the day care centre in his complement (Ms Break confirmed 1 \..- j ~ 18 .G" that se~urity-had a key to the dayca~e centre until 1991 when they removed it due to- their concerns about unauthorized entries ) Mr Carducci testified that he does not use a memo book and fills out his daily activity report at the end of his shi~t relying upon his memory He may jot down special calls on a slip of paper during his shift but he does not note all routine patrols or unremarkable activities Mr Carducci confirme4 the practiceJ described by all other grievors as well, of having just one Security Officer log an incident even though two were present, or sometimes both Security Officers log it There is no standard procedure H~ thinks his logging procedure is "reasonably specific" and he has not been criticized for it With respect to filling out insecure prerqise reports, he said it depends on the nature of the premise Training room doors are often left open and he does not always log that or fill out an insecure premis~ report- However, ifh~ found the pharmacy insecure he would certainly log that and fill out an insecure premise report Mr Carducci also confirmed the evidence of all of the other Security Officers that the way you find out whether you have a key for an area is through trial and error You may think you have .a key and find out you do not when you attempt to open a door The key list in the security office is frequently updated and not always accurate Mr Carducci could not recall hearing of any problems with. thefts or entries into the day care, and he had not seen any of the memoranda directed to Mr Frost Mr Carducci insisted that he could not recognize the second person on his tape and does not think that the first time he was interviewed he had a work schedule to know who he was on duty with that night ~~ 19 (The person is unrecognizable on the tape ) With respect to opening D, the refrigerator door, he said he did not remember doing it but acknowledged that he must have when he- saw the tapes He says he has a habit of opening refrigerator doors just to see what is inside, and his mother frequently complains about it Mr Carducci was charged with two counts of theft under $1,000 00 At trial, one count was dropped and he pleaded guilty and obtained an absolute discharge on the second count He entered the guilty plea because he discovered that his union was not going to pay his legal fees for a trial He too contributed his share towards the video rental r Mr Carducci gave misleading information to Mr Sloot about guessing the key pad code In fact he had been told the code on more than one occasion by day care staff This fabrication was made I in consequence of the rumours he and the others had heard from the housekeeping staff about the awful consequences that were about to unfold for people found in the day care area He had been told to give vague answers to any questions about his entry into the day ~ care centre and he thought that answer was vague enough Again we are not persuaded that Mr Carducci knew he was doing anything wrong on the days in question He had no business looking ( in the refrigerator, but it is a harmless activity if nothing .is taken His loggipg and notebook procedures may be a little sloppy but that is a performance issue, at least in the first instance, ~ I , / ,~. , 22 (\ staff He did not always log his patrols of the day care In particular, if the hallway access doors were secure and only the day care door was insecure, he might not log it Mr Kulik had seen , ~ the notation made by Mr Taylor on June 4, 1992, requiring the Security Officers to check the day care doors at least twice on midnights and he did ch-eckthem on a regular basis He too was unaware of the- continuing problems of theft and unauthorized use of the day care centre faced by the board o~ directors He had never seen any of the memoranda directed to Mr Frost Mr Kulik did not say that he faced criminal charges in connection with the videotape, and so we assume he did not He too testified about his loss of reputation in the QSMHC and about the widespread rumours of his involvement in parties and all sorts of carryings on in the day care centre These rumours have tarnished his reputation, and the whole situation has been weighing on his mind for two years On all of the evidence, we conc1.ude that Mr Kulik was unjustly disciplined The monies lost must be repaid to him and the discipline removed from his record The last grievor, Mr James Patterson, was called to the day care centre by Mi:" Krol when he found the premises insecure and could not locate a key Mr Sloot saw two sinister occurrences in this videotape First of all Mr Patterson was seen to open the refrigerator door, close it, then put a latex glove on his left hand, open the door again and take something out Mr Sloot thought ~ 23 that Mr. Patterson had put gloves on both hands and that it was for ~ the purpose of avoiding leaving fingerprints on the refrigerator door However, upon reviewing the tape again, Mr Sloot conceded that the door was opened once with a bare hand and the second time with the gloved hand, and that there was only one glove Mr Patterson explained that he had simply observed that the latex gloves in the kitchen area were superior to the ones issued to Security Officers and that is why he tried the glove on He acimi ts that he took a cookie, that he should not have, and that that action is deserving of some discipline His failure to log the incident is explained by the fact that Mr Krol logged it, and it is a normal practice amongst Security Officers that just one Security Officer will log an inciqent when two were in attendance Mr Patterson could not recall being approached by Ms Break about tbe ongoing problems in the day care We found this a little difficult to believe, but it is possible Mr Patterson was given a four-sh-ift suspension, and we think that is excessive for what he actually did wrong, which was taking the cookie It is not clear, and he was not asked, whether he took the latex glove with him or left it behind Mr Patterson pleaded guilty to one count of theft under $1,000 00 at trial and received an abso;Lute discharge He 1 contributed his share to the cost of the video rental ) -S'- 24 ~ ~\ In all of the circumstances we think a one--shift suspension is the appropriate discipline for Mr Patterson and his record shall be so amended He shall be reimbursed for ~t:tie additional three lost shifts We shall remain seized of jurisdiction in the event there is any difficulty implementing this decision for a period of thirty days following its release Dated at Toronto this 24th day of Oe-ltober, 1995 ~~ A Barrett, Vice-Chairperson I /~/~ - E Seymour, Member "I Partially Dissent" (attached) M Milich, Member '0 - ~ Partial Dissent in the Matter Between OPSEU ( Carducci et af) and Ministry of Health (GSB # 884193) f have reviewed the decision in the above matter and cannot wholly agree with my colleagues. I agree with the decision with respect to Mr Joseph Krol who was patrolling the corridors around the day care centre when he discovered an unsecured door and then followed the correct procedure to ensure that the centre was secured. I also agree with the decision with respect to Mr Ted Kulik to the extent that the employer had not proved its case against him. We were unable to identify the individual shown on the video as Mr Kulik. While I would have preferred a somewhat stiffer penalty in the case of Mr James Patterson for the general reasons discussed below, I cannot say unequivocally that a one shift suspension is inappropriate in the circumstances. Where I must part company with my colleagues is with respect to the decision regarding Ms. Bernadette Cwenar and Mr Marco Carducci In general, this case turns on the credibility of the grievors, particularly as it applies to their stated belief that they had unrestricted access to the day care centre and that they were all unaware of the problems faced by the centre. The grievors testified that they did not know that their access to the day care was restricted. In fact, Ms. Cwenar and Mr Carducci testified that they had patrolled the interior of the day care centre in the past. While there was no policy stating that access to the day Care centre was restricted, it seems to me that the belief that they could access the centre at will was at odds with reality In the first place, as the employer argued, access was restricted by the simple fact that the officers were not issued a key or the combination for the coded locks. However, more telling is that Mr Carducci and l --- ;;' ~, I another officer testified that when the centre first opened the offi~rs were issued a key which was later tal<en away No new key nor the lock :codes for the centre were subsequntly issued to the officers. It seeniS.to me that this action was a cI~r indication that the officers were not to have ~otally free access to the centre. Further, it is difficult to believe that the security officers were as oblivious to the problems faced by the day care centre as these grievors claim to have been. Mr T Taylor, a bargaining unit supervisor who had also been disciplined for being in the centre inappropriately, but, who had not grieved his discipline, testified that the day care problem had been discussed in a staff meeting. As well, he had left the June, 1992 memo to officers regarding unsecured doors to the day care. Mr TaylOr also testified that he was aware of the memoranda from day care ,staff regarding their problems. Ms. Break testified that she had discussed the probfem with her fellow stewards, including Mr Patterson, hoping that they would make an effort to have the mtsuse of the centre stopped. Mr Patterson did not deny that he was approached by Ms. Break but testified that he could not recall her doing so. In these circumstances, we have 'no reason to doubt the evidence of M~. Break or Mr Taylor It should be bomein mind that security staff, having beehfound in the day care centre inappropriately, were identified in-the memoranda from Ms. Break to Mr Frost as being part of the problem. Unfortunately in these circumstances, there is a great deal of incentive to develop faulty memories about the issue. The video evidence showed aU the security officers with the exception of Mr Krol opening the refrigerator door Mr Carducci was viewed rummaging through it. Ms. Cwenar took out a bag of cookies looked at it and then replaced it. Mr Patterson took a cookie. These actions cannot be viewed outside, the context of the complaints from the day care centre which included pilfering of food and utensils from the centre. No one gave an good reason for going into the refrigerator Without satisfactory reasons, this Board is entitled to, draw adverse inferences from the actions of the- grievors. The evidence of Ms. Cwenar and Mr Carducci shattered whatever credibility the they may have had. At the very least, they diSsembled, and, at the worst, they misted their manager during the, investigation and the predisciplinary meeting. This was a significant breach of trust and .was disciplinablein its own right. Ms. Cwenaf told Mr Sloot that she only went into the daycare out of curiousity and maintained this stance at the predisciplinary meeting. Mr Carducci admitted that he had been in the centre when confronted with the video evidence. At the predisciplinary meeting, he maintained that he had been in the centre just the two times on the videos. -- ? .l Ms. Cwenar was not sure who had the combination for the coded locks at both the investigative and the predisciplinay meetings. However, at the predisciplinary meeting when asked directly if she had learned the code, she answered in the negative Mr Carducci maintained that he simply tried some numbers to see if he could get the code right and was successful. By the time these Qrievors testified at the hearing, there was a significant change in their evidence. At the hearing, they testified that they had patrolled the interior of the day care centre in the past. The combination for the coded locks were given to them by day care staff In essence, they testified that they had every right to be in the centre. Their reasons for dissembling and, in fact. misleading their employer were that they had heard rumours from the housekeeping staff about the consequ~nces that were about to befall the security personnel, and were also told by their stewart, Mr Patterson, to be vague in their answers. Mr Patterson testified that he had told them to be cautious in their answers, a difference that was evident in the answers he gave when questioned by Mr Sloat. Except for the taking of the cookie, he was legitimately in the centre on the night that he was video taped and so indicated. Ms. Cwenar and Mr Carducci, on the other hand, consciously misled Mr Sloot. If, as they now claim, they had patrolled the centre in the past and were there legitimately as part of their duties, there was absolutely no reason to attempt to dissemble before Mr Slool or to mislead him. If they felt there was no wrong doing, they would have been straightforward in their answers to Mr Soot as were Mr Krol and, for that matter, Mr Patterson, rumours of dire consequences notwithstanding. The most reasonable inference that can be drawn from their actions was that they knew full well that they shoufd not have been in the day care centre. It was the failure of both Ms. C~nar and Mr Carducci to be forthright and honest with Mr Sloot which constituted a real breach of trust by these officers and deserved discipline. At a minimum, I would have, maintained a suspension of one shift for these two grievors. Michael Milich