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HomeMy WebLinkAbout1994-1267MCKINNON96_10_11 - CJNTARIO EMPLOYES DE LA OOURONNE CROWN EMPLOYEES DE L ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO '1150 /Z8 TELEPHONEITEUiPHONE (4161 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M50 IZ8 FACSiMILE ITELECOPIE 4 J6) 326-1396 GSB # 1267/94 OPSEU # 94E344 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McKinnon) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE R J Roberts Vice-Chairperson FOR THE A Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE J Benedict EMPLOYER J F Benedict Dispute Resolution Services Inc HEARING June 1, 1995 January 16, 22, 29, 1996 July 16, 1996 1 AWARD I. Introduction In thIS arbItratIOn, the gnevor, a correctIOnal officer at the Metro East DetentIOn Centre, complamed that hIS health and safety were unreasonably compromIsed by certam actIons of hIS manager m an mCIdent that occurred durmg a routme cell mspectIon. When the response of the employer to these actIOns was, m the opImon of the gnevor, madequate he filed the gnevance leadmg to the present proceedmg For reasons whIch follow, the gnevance 1S d1smIssed. II. The Evidence The wItnesses who appeared at the heanng gave verSIOns of the mC1dent that m some cases vaned WIdely from one to the other For thIS reason, It wIll be necessary to set out m some detaIl the eVIdence of several of these wItnesses The wItnesses who testIfied on behalf of the umon were the gnevor Mr M. J McKmnon, and the mmate who was mvolved m the mCIdent, Mr Irvme Forest. The wItnesses who testIfied on behalf of the employer were the Floor Manager who was mvolved m the mCIdent, Ms. Lmda Ashley a casual correctIOnal officer who was - I - present dunng the IncIdent, Mr Aaron Walden, a correctlOnal officer who worked In the segregatlOn uOlt of the InstltutlOn at the time of the IncIdent, Mr Garv Peck, the Floor Manager who took Mr Forest to segregatlOn, Mr Errol ReId, the 0 M 14 supervIsor who took Mr Forest's statement after the IncIdent, Mr Devanand Makudal, and, the then SeOlor AssIstant Supenntendent at Metro East, Mr Joe DeFranco The eVIdence of all of the witnesses except Mr Makudm w1l1 be revIewed. (1) The Witnesses for the Union The Grievor, Mr M. J McKinnon Mr McKInnon testified that he was a C02 at the Toronto East DetentlOn Centre, although he was currently "act1Og" 10 an 0 M. 16 supervIsory posltlon. He had consIderable expenence at Metro East, hav10g commenced employment there 10 1977 Pnor to that, he had some education In correctIOns, hav10g commenced attend10g CentennIal College 10 ItS CorrectlOnal Workers' Program and graduat10g WIth a dIploma 10 RecreatlOnal LeadershIp after sWltch10g 1Oto that program. AccordIng to Mr McKInnon the 10Cldent 10 questlOn happened on June 15, 1994, when he and Mr Aaron Walden were assIgned to be the correctlOnal officers on the 4 C West UOlt. ThIS uOlt housed 18 male 1Omates. TheIr cells opened Into a large day room, whIch had several plCOlC tables at whIch the Inmates could SIt and watch televlslOn, play cards, etc About SIX or seven of . 3 these Inmates were black. At about 945 a.m. Just after the Inmates had been fed and the cleanup had been completed, Ms Lmda Ashley the manager m charge of thIS and other umts, arnved. She announced that she wIshed to mspect the cells m the umt. Accordmg to Mr McKinnon, these cell mspectlOns were conducted routmely but randomly They were for the purpose of checkmg for cleanlmess, contraband, alcohohc beverages, damage to the cell or the tOIlet, and the presence of anythmg that mIght be used as a weapon. Durmg a cell mspectlOn, the inmates normally stood by the doors to theIr cells Followmg the routme normally used dunng cell mspectlOns, Ms Ashley and Mr McKinnon entered the day room and closed the door behmd them. Mr Walden remamed outsIde and acted as " cover" for the two of them at the gnlle door He stood close to an emergency button that he could push m case anythmg went wrong Accordmg to Mr McKinnon, Ms Ashley was m a hurry to get mSlde As soon as Ms Ashley got mSide, Mr McKinnon Said, she started yellmg at inmate Forest and told him that he was on a misconduct. When Mr Forest asked why, Ms Ashley yelled back, "you know what for" Then, Ms. Ashley confronted Mr Forest face-to-face, yellmg at him, "vou know what you're on a misconduct for I've talked to you about thiS before!" It seemed that Mr Forest, who was black, had an elastic band around hIS goatee He had prevlOusly been warned by Ms Ashley that elastIc bands were contraband and could not be used even for groommg - 4 purposes Whe.n testIfYing upon dIrect eXaminatiOn, Mr McKinnon said that at thIS time Ms Ashley went nght up Into the Inmate's face She pulled the elastic band from hIS goatee Mr Forest then became Incensed and responded, "vou're harassing me!" Ms Ashley yelled back, "you're on a mIsconduct'" The whole tone Mr McKinnon said, was yellmg Upon cross-exammatiOn, however Mr McKInnon was not so sure that Ms Ashley pulled the elastIC band from Mr Forest's goatee He saId, "lIstemng to the eVIdence thIS mornmg, I'm not sure I am sure that she tugged at hIS goatee I am sure that she yanked on It. She was very agItated." At thIS time Mr McKInnon went on, the other Inmates were stIrrmg and starting to yell out comments Upon cross-exammatIOn, he Said that these comments bUIlt up to Include refernng to Ms Ashley as a "pussy clot", a slang term used by a lot of Jamaican Inmates, and a bItch -- as well as other epIthets m dIfferent languages and dIalects. The crecendo m these comments was reached, accordmg to Mr McKmnon, Just after another exchange between Ms Ashley and Mr Forest. As he and Ms. Ashley were leavmg the umt to take Mr Forest to segregatiOn, he saId, Mr Forest turned to Ms. Ashley and saId m an argumentatIve tone "you're puttmg me a mIsconduct because I'm black." Ms Ashley then went up mto Mr Forest's face agam, and replied, " that's nght, you're on a mIsconduct because vou're 5 black." Upon. cross-eXaminatIOn. Mr McKInnon said that at thIS pOint hIS OpinIOn was that Ms Ashlev was provoking a confrontatIOn. The Inmates began moving from the doors of theIr cells toward them, Ignonng Mr McKInnon's orders to stay where they were They began yellIng, " keep vour hands to yourself' and "what's your name, what's your name!" Mr McKInnon testIfied that he became concerned for hIS own and Ms Ashley's personal safety He felt sure that a phvsIcal confrontatIOn was gomg to develop between staff and Inmates He'd seen confrontatIons develop wIth less provocatIOn in the past. In hIS opmIOn, If Ms. Ashley had been a male, It would have been bloody As soon as he and Ms Ashley had left the day room and were in the COrrIdor outsIde, Mr McKInnon said, the Inmates rushed to the gnlle door to see what was gOing on. He said that he saw them do It, that everyone m the COrrIdor could see the door rattlIng and hear the Inmates yellIng He had no doubt that Ms Ashley and Mr Walden would have seen thIS MeanwhIle, m the COrrIdor the angry exchange between Ms. Ashley and Mr Forest continued According to Mr McKInnon, Mr Forest kept inSISting that he was being harassed. Ms. Ashley kept yelling, "I told you about thIS before, I told you about thIS before It's a mIsconduct. You're gOing down to segregatIOn!" Mr McKInnon agreed upon cross-exammatIOn that Inmates who were placed on mIsconduct - 6 raised their VOices, swore at the correctIOnal officers. made their own accusatIons against correctIOnal officers, and became argumentative In his view however Ms Ashley had tossed a grenade" Into the Unit. Upon re-eXaminatIOn, he Said that Inmates would take any little thing and use It as a crutch to support defiant conduct that might even develop Into notous conduct down the line The argument between Ms. Ashley and Mr Forest continued In the inactIve area, which was an area between the east and west SIdes of the Unit that was used for VISItS, recreatIOn, etc Ms Ashley and Mr Forest continued to yell at each other nose-to-nose At thIS tIme, Mr McKinnon Said, he was covenng along WIth Mr Walden. Then, Ms Ashley adVIsed them that she was gOing to get someone else She left the inactIve area and went Into the Unit office next door to use the telephone When she dId so, Mr McKmnon SaId, Mr Forest was still very upset. He became \\-omed that he and Mr Walden would become the focus ofMr Forest's anger A short tIme later, Mr Errol ReId, an OM14 supervIsor amved on the Unit. He entered the inactIve area and took Mr Forest down to segregatIOn. As Mr ReId was leaVing WIth Mr Forest, Mr McKinnon saId upon cross-eXaminatIOn, Mr Forest was yelhng at Ms Ashley Mr McKinnon, Mr Walden and Ms Ashley then returned to the west SIde of the Unit to continue the cell inspectIOn. According to Mr McKinnon, he and Ms Ashley entered the day room and completed the mspectlOn Without mCIdent. Then, Just before leav mg. Ms Ashley turned to all of the Inmates - 7 and saId, "guys, I can be firm and fair or I can be a real bItch." Mr McKlllnon said that she made thIs statement III "kllld of a smIrky tone" He felt she was puShlllg her luck. She was agitated and was gIVlllg the Inmates a message that she was III charge When a couple of black Inmates wanted to know her name, she replIed, "Ashley" As the v were leavlllg the UnIt, Mr McKlllnon saId, he asked Ms Ashley to accompany hIm to the office After Shuttlllg the door for pnvacy, he saId to her "you're the manager, but don't ever put me III that pOSItIon agalll." He told her that It was a breach of secunty To Mr McKlllnon's surpnse Ms. Ashley responded, "well, I refer to myself as a bItch." He responded that apparently hIS message was not gettlllg through to her Mr McKlllnon explallled III hIS eVIdence that he was looklllg for a recognItIOn that she had endangered hIS health and safety and had made a major error that was uncalled for He then adVIsed Ms. Ashley that he would be proceedlllg WIth a complalllt about her conduct. He dId so III the form of an occurrence report. He dId not file a grIevance at that tIme Upon cross-examlllatIOn, Mr McKmnon Said that If Ms Ashley had acknowledged to hIm that she had used lllappropnate racIal termlllology that had endangered hIS health and safety, as well as the securIty of all the lIves lllvolved, he would not have proceeded WIth a complalllt. Instead, all that he got was an acknowledgment that she referred to herself as a bItch. When he returned to hIS dutIes III the UnIt, Mr McKlllnon Said, the Inmates were upset but gave no dIfficultv to hIm or hIS partner Some were talklllg about contactlllg the Ombudsman. To do ~~ 8 thIS, Mr McKInnon explamed, the Inmates fill out a request for an Ombudsman letter The request then goes to the t100r superVIsor who on that day was Ms Ashley The Inmate then IS gIven a blue form letter to till out that folds mto an envelope The request and letter are documented m a book WIth the Inmate's name, number and date When he mspected thIS book. Mr McKInnon Said, he noted that on June 15 , Mr Forest requested such a letter Over the followmg penod of tlme Mr McKInnon Said, he repeatedly asked Mr Joe DeFranco the semor aSSIstant supenntendent at Metro East, what was bemg done regardmg hIS report upon Ms Ashley's mIsconduct. He even asked for a pnvate meetmg WIth the MmIster of CorrectIOns. The mformatIOn he receIved was that the matter was bemg dealt WIth by the supenntendent. Accordmg to Mr McKInnon, he wanted the employer to conduct a full mvestIgatIOn mto what had transpIred, touchmg on the Issues of raCIsm, secunty and profeSSIOnal mIsconduct. Instead" the employer tned -- as always, m hIS opmIOn -- to sanItlze the mCIdent and make excuses for theIr direct or mdlrect raCIsm. The Issue of raCism was of particular concern to him, Mr McKInnon said, because he was of natIve CanadIan ancestry When the employer failed to give hIm the response he was lookmg for, Mr McKmnon Said, he deCIded to gneve ThIS was a senous Issue, m hIS opmIOn, and management det1ected their responsIbIlity to address the health and safety Issue As far as he was concerned, Mr McKInnon Said, there was a hiStOry of raCIsm at Metro East and a deflectIOn of responsIbIlitv by semor admmIstratIOn for thIS raCIsm. 9 The Inmate, Mr Irvine Forest: At the tIme he testIfied, Mr Forest was an Inmate In the federal pemtentIary at JovcevIlle He was servIng an eighteen year term for attempted murder and concurrent sentences for other convictIOns He left Metro East on May 12, 1995 AccordIng to Mr Forest, about a week or two before the IncIdent In questIOn, Ms Ashley told him to take a rubber band from hIS goatee He said that before she dId thIS, she had called hIm Inside hIS cell to show hIm some tOIlet paper that was stuck m the air vent. When she told hIm to remove It, he replIed that he dId not put It there At that, she yelled, "get outsIde, you're on a misconduct'" They proceeded to the comdor outsIde the day room. Once they were there, she turned to hIm and said, "pnsoner, when I'm talkmg to you don't backtalk me!" Then, she came up mto hIS face and shouted, "get that rubber band from your goatee!" He complIed but dId not reply Ms. Ashley then shouted m hIS face, "dId you fuckmg hear me!" Then she saId, "get the fuck mSIde," meanmg mSIde the day room. He went back mSlde and she left. As to the mCIdent m questIon, Mr Forest confirmed that It occurred on June 15 1994 He saId that Ms Ashley came mto the range wIth Mr McKinnon. ("The range" was the term used to Indicate the area that mcluded the day room and the cells) Once agam, he had a rubber band on hiS goatee When Ms Ashley saw thIS, she said, "vou, you're stIll weanng the rubber band. Get outsIde' You're on mIsconduct!" She was very aggressIve and screammg In a hIgh-pitched tone - 10 of VOlce Her VOlce was very loud. Every one could hear her Mr Forest said he took Ms Ashley's directiOn to mean that he was to get outside the range He had to abandon his efforts to retneve his personal belongmgs from his cell and proceed toward the gnlle door Whlle he did so, Ms. Ashley came nght up mto his face and grabbed at his goatee as if to pull the rubber band off He could not recall whether the band came off at that pomt or he was the one who took it off Accordmg to Mr Forest, he then went outside the range He said that he was upset and was cursmg m Jamaican. Then, Ms Ashley came outside She came nght up mto hIS face as If she wanted to do somethmg to hIm. She was shakmg and screammg at hIm. Mr Forest SaId that because of her behaViOr, he was sure that another mmate who was not as composed as he was would have eIther pushed her or hIt her At that pomt, Mr Forest contmued, he told Ms. Ashley that if she touched him. he would charge her With assault. Ms Ashley got angry and started to pace, lookmg m Mr McKInnon's dIrectiOn as if she wanted hIm to do somethmg to Mr Forest. That, Mr Forest testified, was when he SaId to Ms Ashley, "I know why you're domg thIS to me Because I'm black." Ms Ashley rephed, "yes, because you're black." She then went mSIde the office by the mactlve area to make a telephone call Upon cross-exammatiOn, Mr Forest was asked 'W hether the exchange between hIm and Ms 11 Ashley about his being charged because he was black occurred in the day room He replied, "yes Sir I was not in the cell area but the day area." L\ few minutes after Ms Ashley made the telephone call, Mr Forest said. a Sergeant came and took him to segregatiOn. Upon cross-exanunatiOn, Mr Forest descnbed thiS Sergeant as a tall black man. When asked whether he recalled telhng thiS Sergeant that he the Sergeant. was picking on him, Mr Forest replied, "no sir" When asked whether he recalled tellIng a Mr Peck. the correctiOnal officer supervlSlng him in segregatiOn, that the officer who took him to segregatiOn was picking on him, Mr Forest replIed, "No Never Absolutely incorrect." After he was placed in segregatiOn, Mr Forest testified, he telephoned the office of the Ombudsman to file a complaint. An investigator from thiS office named James Nicholas returned hiS call He instructed Mr Forest to wnte an Ombudsman letter and send it to him. Mr Forest did so but, he Said, he was unsure whether the office of the Ombudsman ever got hiS letter because nothing was being done and he later felt that repnsals were starting to affect him These repnsals were directed agamst him, he said, because he was regarded as a troublemaker Upon cross-eXaminatiOn, Mr Forest agreed that he had been in segregatiOn about three times before On one occaSiOn, he Said, he was alleged to have been in a fight With another inmate On another occaSiOn, he was sent to segregatiOn for refuSing an order On the third occaSiOn, he was sent to segregation for allegedly being part of a group of inmates who beat another inmate on the range He remarked, "there were qUite a few times I was there in segregatiOn." 12 When asked what he expected from the Ombudsman, Mr Forest said that he told the Ombudsman he was very concerned about the mIsconducts on hIS record. He claImed that he was not told that a rubber band was contraband and never saw any regulatIOn posted to that effect. To hIS knowledge he said, he dId not refuse a dIrect order The first tIme that he was ordered to take the rubber band off hIS goatee, he dId. Ms. Ashley, he saId, dId not say that the rubber band was contraband or that he was not to put It back on. He wanted the mIsconduct erased from hIS record and an InvestIgatIOn of the conduct ofMs Ashley toward hIm, In that she used abusIve profane language toward hIm and pulled on hIS beard, WhICh he belIeved constItuted an assault. She also confirmed hIS theory that the reason she dId thIS was because he was black. Many Inmates, Mr Forest said, used rubber bands to groom theu hair and beards No guard ever said to take them off He felt that Ms. Ashley had unfaIrly targeted hIm The only reason that he could see for been sIngled out by her were complaInts that he had prevIOusly made to the Ombudsman. (2) The Witnesses for the Employer" The Floor Manager, Ms. Linda Ashley Ms Ashley testIfied that she was currently the OperatIons Manager at Metro East. At the tIme of the InCIdent, June 15, 1994 she was a Floor Manager, supervISIng twelve correctIOnal officers It . 13 was noted m the course of her testImony that her normal speakmg VOIce was qUite loud. Accordmg to Ms Ashley a week before the mCIdent, on June 9, 1994 she notIced dunng a cell mspectIOn that Mr Forest and another black Inmate who was a fnend of hIs, Mr Forester had elastIc bands around theIr goatees She told them to remove the elastICS They removed the elastics and gave them to her She explamed that elastics were not allowed because they were not Issued to Inmates ThIS, she saId, was a warnmg She usually gave warnmgs to Inmates before domg somethmg more senous such as chargmg them WIth mIsconducts Ms Ashley explamed that any Item that was not Issued to an Inmate upon admIssIOn to the mstItutIon was conSIdered to be contraband. For thIS reason, an elastic band was conSIdered to be contraband. Upon cross-exanunatIOn, she acknowledged that other correctIOnal officers and supervIsors knew thIS was so but some allowed elastIC bands to be worn. She sard, however, that the Inmates were aware that If she told them to remove a contraband elastIC band, they'd better be sure to keep It removed when she was present. In the course of thIS cell mspectIOn, Ms. Ashley sard, she found Mr Forest's cell to be filthy She called hIm m to pomt out thmgs that had to be done Mr Forest, who, she sard, had no respect for authonty, became abUSIve and rude Turnmg to the mCIdent that occurred on June 15 Ms Ashley saId that upon entenng the day room, she notIced that Mr Forest once agam had an elastic band around hIS goatee She told hIm - 14 that he was bemg placed on a misconduct for the elastic around hiS goatee as she had previOusly warned him about this Upon cross-exammatiOn, Ms Ashley said that when she told Mr Forest thIS, .she raIsed her vOIce but dId not yell She did so she saId, because a mIsconduct IS a very serIous thing and when placmg someone on a misconduct, a correctiOnal officer dIdn't Just say In a smg-song VOice, "Johnny I'm gOing to charge you." Mr Forest, Ms Ashley Said, then got aggressive and angry As he moved toward the gnlle door he took the elastic from hiS goatee She never made any effort to remove the elastic band herself and never touched him m any way When Mr Forest got to the pomt where she and Mr McKmnon were standing, he gave the elastiC band to her They turned to escort him out mto the comdor As they neared the grIlle door Mr Forest stopped and Said to her "vou're fucking chargmg me because I'm black!" He was both phYSically and verbally aggressive To thiS, Ms Ashley Said, she rephed, "yeah" Upon cross-eXaminatIOn, Ms Ashley said that when Mr Forest accused her of charging him because he was black, he knew that wasn't so Her opmlOn was that he Said thiS to "get the umt gomg" because over 50 percent of the Inmates were black. In thiS sense, she Said, It was not a true allegatiOn of racism. Mr Forest was only usmg thiS allegatIon as a first lme of defence He knew that the real reason he was bemg charged was for dIsobeymg a lawful order of an officer Accordmg to Ms Ashley, she rephed "yeah" to Mr Forest's allegatIOn of raCIsm to calm the umt Mr Forest, she Said. was Just showmg off by veilIng about the mIsconduct bemg because he was . 15 black. He expected some response from the other Inmates She thought that agreeIng wIth hIm would cut short the argument by depnvIng hIm of anyone to argue wIth. As It was, Ms Ashley saId, the other Inmates dId not react. They dId not say anythIng At no tIme dId she feel that anyone's health or safety was put at nsk. Once she and Mr McKInnon had escorted Mr Forest Into the corndor Ms Ashley saId, they took hIm to the Inactlve area. He was stIll agItated and angry but calmer than he had been In the umt. When they arrIved, she had another manager Mr Errol ReId, come up to take Mr Forest to segregatIOn. Mr ReId escorted Mr Forest to segregatIOn alone Mr Forest was not placed In any restraInts. Less than five mInutes later, Ms. Ashley SaId, she and Mr McKInnon reentered the umt to complete the cell InSpectIOn. Mr McKInnon dId not VOIce any concerns as they returned to the range nor dId he object to reentenng the umt. The Inmates were fine They dId not react. They were cooperatIve and never SaId anythIng to her about the InCIdent dunng the course of the inspectIOn. Upon cross-eXamInatIOn, Ms. Ashley SaId that she belIeved that the fact that Mr McKInnon reentered the umt WIth her to complete the InSpectIOn IndIcated that, lIke her, he dId not see the InCIdent as haVIng created a dangerous SItuatIOn. Ms Ashley agreed that after the cell InSpectIOn was completed, Mr McKInnon asked her Into hIS office and told her not to put hIm In that posItlon agaIn. She SaId that she understood that he was saVIng that she should never have saId "yeah" to an allegatIOn of raCIsm from a black Inmate In 16 front of other black mmates. Her reply was, "I dIdn't mean anythmg by It, OK')" Ms Ashley explamed m her testImony that she saId thIS because she knew the real reason why she sard "veah" She sard that she would do the same thmg agam. Toward the end of her eVIdence upon dIrect exammatIon, Ms Ashley was asked If she agreed wIth a number of statements that Mr McKmnon made m hIS occurrence report and hIS eVIdence As to these she demed that she entered the umt yellmg at Mr Forest. In fact, she demed that she ever yelled at Mr Forest. She demed that she told Mr Forest that he knew what he was bemg charged for She saId that she told hIm he was on a mIsconduct for the elastIc on hIS goatee Ms Ashley also demed that she even waved her hand by Mr Forest's chm. She sard that she used her hands a lot when she talked to anyone and she may have pomted m Mr Forest's dIrectIOn when she saId that he was on mIsconduct. As to contmumg the argument m the mactIve area, she sard that she could not remember Ms Ashley vIgorously demed that after completmg the cell mspectIOn she made any statement to the Inmates that she could be firm and faIr or a real bItch. She saId she never would ever make a statement lIke that. In thIS case, she added, there was no need because the cleanup made by the Inmates was very ImpressIve She even made a notatIOn to that effect m the log book. Ms Ashley also demed telling Mr McKmnon that she referred to herself as a bItch. She saId that she was msulted that Mr McKmnon concluded that she couldn't comprehend hIS message 17 The Grievor's Partner, Mr Aaron Walden Mr Walden testItied that he had worked at Metro East DetentiOn Centre as an unclassIfied correctiOnal officer smce March, 1993 On the day m questiOn, June 15 1994 he was assIgned to be the gnevor's partner Accordmg to Mr Walden, Ms. Ashley arrIved by herself to mspect the 4 C West umt. She asked hIm and Mr McKmnon to accompany her He let Mr McKmnon and Ms Ashley mto the umt and then locked the door behmd them. He recalled that the llunate, Mr Forest, was standmg at the centre of the day room. Ms. Ashley looked over at hIm and said that he was on a mIsconduct. Mr Forest replIed wIth words to the effect that he was bemg pIcked on because he was black. ThIS reply was made m a raIsed VOIce whIle Ms Ashley was nght m front of hIm. He dId not hear whether Ms. Ashley made any response Then, Ms. Ashley told Mr Forest that on a previOUS occaSiOn she had told hIm to remove the elastIc band from hIS goatee and that If she saw hIm wIth It agam she'd place hIm on mIsconduct. Upon cross-exammatiOn, Mr Walden saId that the elastIc band was removed from Mr Forest's goatee m the umt. He said that he belIeved that Ms Ashley asked for It. He dId not recall whether she reached out for It but dId recall that he saw Mr Forest remove the elastIc from hIS beard. 18 While thlS mCident was gomg on, Mr Walden said, all of the other inmates m the umt were aware of what was happenmg They were Just standmg and watchmg Thev were not reactmg but merely cunous When Mr Forest was removed from the umt, they went back to playmg cards and readmg the newspaper He dld not see any inmates approach the gnlle as he was lockmg it. When asked whether he felt threatened at any tlme, Mr Walden rephed that he dld not. He Said that he was near the blue emergency button outslde the gnlle whlle Mr McKmnon and Ms. Ashlev were mSlde the umt. Dunng the mCldent, he Said, he never had any thought of pushmg it. Whlle Mr Forest was angry about bemg placed on mlsconduct and Ms. Ashley was agltated, Mr Walden sald, he dld not beheve that Mr Forest had to be restramed once he was outslde the umt. He walked under hlS own power When Mr Reld came to take Mr Forest down to segregatlOn, he dld so by hlmself Mr Walden dld not recall seemg Mr Forest bemg restramed m any way Mr Gary Peck. Mr Peck testlfied that he had been a correctlOnal officer at Metro East smce October, 1990 In that tlme, he had worked a lot m the segregatlon umt. On the day m questlOn, June 15, 1994, he was workmg m the medlcal segregatlOn umt on the day Shlft. Inmates went to segregatlOn, he Said, for mlsconducts, thelr own health or safety or upon thelr own request based upon mCldents that occurred around them. The segregatlOn umt, Mr Peck added, was also the medlcal umt. . 19 When shown an IncIdent report that he had wntten on June 15 1994 and In whIch he had stated that once Mr Forest was secured In a cell he sard "that OM 14 ReId was pIckIng on hIm," Mr Peck could not remember WrItIng the report. He sard, however that If he wrote a report savmg that Mr Forest clarmed he had been pIcked on by Mr ReId, Mr Forest must have sard that a number of tImes Upon cross-eXamInatIOn, Mr Peck agreed that he would not have WrItten thIS report unless someone had asked hIm to do so He sard that the fact that an Inmate complamed was not usually a reason for wntmg a report. Mr Errol Reid Mr ReId testIfied that he was currently the Secunty Officer at Metro East, and was In charge of ensurIng that the operatIons and procedures In the InstItutIOn complIed wIth the need for secunty At the tIme of the mCIdent m questIOn, he saId, he was a Sergeant or Floor Manager lIke Ms. Ashley He had been at Metro East for almost 18 years and had spent hIS whole career there On the day of the mCIdent, he saId, he was paged by Ms Ashley, who Informed hIm that he had to take an Inmate to segregatIOn. When he reported to the umt, Ms. Ashley Informed hIm that Mr Forest was the Inmate who had to be escorted to segregatIOn because she was placmg hIm on a mIsconduct. When he spoke wIth Mr Forest, Mr ReId saId, Mr Forest claImed that Ms. Ashley was pIckmg on hIm because he was black. He also recalled that as he was escortmg Mr Forest down to 20 segregatIOn, Mr Forest claimed that he Mr ReId, was plckmg on hIm too because he had removed hIm from a umt wIth no real reason to do so Mr ReId stated that he dId not have any sense that he was m danger whIle escortmg Mr Forest to segregatIOn. Mr Forest was not restramed m any way When asked why Mr Forest was not m restramts. Mr ReId replIed that whIle Mr Forest was agItated "he wasn't hostIle or anythmg lIke that" and he dIdn't feel threatened by hIm. Upon cross-exammatIOn, Mr ReId, who was black, stated that Mr Forest was not the only black mmate who made that kmd of claim. He saId that he'd had a whIte mmate say to hIm that he was pIckmg on hIm because he was whIte He added that he'd also had black Inmates say to hIm that he was plckmg on them because they were black. At the same tIme Mr ReId agreed upon cross-exammatIOn that the more agItated an Inmate was, the greater the rIsk of a dIsturbance He agreed that he would be more concerned about a dIsturbance m a day room, where the Inmates outnumber the correctIOnal officers. He Said that a SItuatIOn could be contamed m a comdor more qUlckly than m a day room because there would not be a whole lot of Inmates there. Mr ReId also agreed that If a correctIOnal officer made a raCIst remark It could cause agItatIOn. He agreed that It was not adVIsable for a correctIOnal officer mSIde a umt to make a comment that black Inmates could perceIve as raCISt. There would be a potentIal for a dIsturbance 21 Mr Joe DeFranco Mr DeFranco testIfied that m June, 1994 he was the Semor AssIstant Supenntendent, CorrectlOns, at Metro East. He was responsIble mdlrectly for all correctlOnal staff It was part of hIS Job to conduct the mvestlgatlOn mto the gnevor's report regardmg the conduct of Ms Ashley In carrvmg out thIS responsIblhty he receIved and revIewed mCldent reports submItted by Mr McKmnon, Ms Ashley Mr ReId, Mr Walden, and Mr Peck. He also receIved and revIewed a statement by Mr Forest. On June 21, 1994, after comp1etmg thIS reVIew, Mr DeFranco recommended to Ms DIane Doherty, the Supenntendent at Metro East, that a meetmg be scheduled WIth Ms Ashley to determme whether dIsclplmary actlOn was warranted. The meetmg was held on August 17, 1994 In attendance were Mr DeFranco, Mr N K. COWIe, the Deputy Supenntendent at Metro East; Ms. Ashley; and, her representatIve, Mr D Carter, a Umt Manager On August 23, 1984, Mr COWIe Issued the followmg memorandum to Ms Ashley On August 17, 1994, you met WIth the undersIgned to dISCUSS allegatlOns relatmg to an mCldent WhICh occurred on June 15, 1994 Also present at thIS meetmg was Mr J DeFranco, Semor ASSIstant Supenntendent, CorrectlOns and your representatlve, Mr D Carter, Umt Manager After carefully consIdenng the eVIdence m thIS matter I am satlsfied that the allegatlOns have not been substantiated. However, It IS clear, your actlOns and comments on June 15 1994 were ''1 mappropnate and unacceptable especIally from a superVISOry employee wIth your expenence and trammg As we dIscussed, you exercIsed poor professIOnal Judgment when you casually dIsmIssed a complamt of racIal dIscnmmatIOn made by an mmate Your faIlure to the take appropnate steps to address the complamt contnbuted to a perceptIOn you have been treatmg Inmates dIfferently because of race Clearlv you had an oblIgatIOn to address the complamt expedItIOusly, yet faIled to do so You WIll recall we dIscussed a number of methods WhICh could have been employed to effectIvely deal wIth the Inmate's complamt. I trust you have benefitted from thIS counsellIng and III future wIll deal wIth sImIlar mCIdents m a professIOnal and competent manner Mr N K. COWIe The gnevor was counselled for exercIsmg poor professIOnal Judgment III dealmg wIth a complamt of racIal dIscnmmatIOn made by an Inmate When asked whether he agreed wIth the contents of the above memorandum, Mr DeFranco saId that he dIdn't dIsagree wIth anythmg m the document. He saId that he felt that Ms Ashley should have responded dIrectly to the allegatIOn that she was puttmg Mr Forest on mIsconduct because he was black. Accordmg to Mr DeFranco, Ms Ashley should have explamed to Mr Forest that thIS was not the reason why he was bemg placed on mIsconduct. Then she should have revIewed wIth Mr Forest once agam the reason for the charge As to the health and safety Issue, Mr DeFranco saId that all he could say was that nothmg happened at the time The remammg Inmates dId not get mvolved m the SItuatIOn between Mr . j" --' Forest and Ms Ashley He added that there was always an Inherent nsk of Inmates becomIng Irate ThIS was not the way he saId, In whIch he would have handled the sItuatIon. Upon cross-eXamInatIOn, Mr DeFranco agreed that the cell InspectIOn procedure whIle routIne, IS one of the nsher procedures carned out by correctIOnal officers ThIS was the reason why the StandIng Orders of the InstltutlOn reqUIred a correctIOnal officer to be outsIde the range ready to push the pamc button should anythIng go wrong Mr DeFranco also agreed that by not respondIng appropnately to the Inmate's allegatIOn that she was racIst, Ms Ashley created an ImpreSSIOn of raCIsm. He confirmed that gIven the tone of VOIce and level of agItatIOn of both Ms. Ashley and Mr Forest, Ms Ashley's response to the allegatIOn of racIsm could not be charactenzed as a Joke Counsel for the umon then asked Mr DeFranco whether, In hIS OpInIOn, the response of management to Ms Ashley's mIsconduct was appropnate In the course of hIS questlOmng, counsel remInded Mr DeFranco that Ms Ashley had testIfied that she belIeved she responded appropnately and would do the same thIng agaIn In the same CIrcumstances Mr DeFranco agreed that Ms Ashley apparently dId not agree wIth the assessment of Mr COWIe He refused, however, to concede that the counsellIng was IneffeCtlve He saId that the only way In whIch he could agree wIth thIS suggestIOn would be If Ms Ashley had actually repeated the same behaVIOr He remmded counsel that Ms. Ashley had been an employee for a number of years, and to hIS knowledge thIS was the first IncIdent of thIS nature In whIch she was Involved. 24 III. Findings of Fact. From the above eVIdence, I find as a fact that when Ms Ashley entered the day room and saw the elastIc band around Mr Forest's goatee, she became agItated and m a forceful manner nOtlfied Mr Forest that he was bemg charged WIth a mIsconduct. It also IS found as a fact that m response Mr Forest became upset and cursed Ms Ashley m Enghsh and hIS Jamaican dIalect whlle followmg her dIrectIOn to leave the day room to be escorted to segregatIOn. I also find as a fact that, contrary to Mr Forest's assertIOn m hIS eVIdence, Ms Ashley mformed hIm that he was bemg charged because he had prevIously been warned by Ms Ashley that elastIc bands were contraband and were not to be used by mmates It cannot be found as a fact that m the course of the mCldent WIth Mr Forest, Ms Ashley either grabbed at or pulled the elastIc from Mr Forest's goatee The weIght of the eVIdence does not support thIS conclusIOn. Rather, It supports the conclusIOn that whlle Ms. Ashley mIght have waved her arm m Mr Forest's dIrectIOn whIle mformmg hIm that he was bemg charged, she dId not touch hIm. It must also be found as a fact that Mr Forest was the one who removed the elastIc band from hIS beard. Contrary to the eVIdence ofMr McKInnon, It cannot be found as a fact that the other mmates m the day room responded to the mCIdent between Ms Ashley and Mr Forest by becommg agItated andJOlmng Mr Forest m cursmg Ms Ashley None of the other eye WItnesses 25 corroborated thIS eVIdence Mr Forest was not asked In hIS dIrect eXaminatIOn about the reactIOn of the other Inmates Mr McKInnon's partner Mr Walden, testIfied that the other Inmates dId not react but \vere merely cunous He Said that when Mr Forest was removed from the Unit, they went back to plaYing cards and readmg the newspaper Ms Ashley testIfied that the other Inmates were fine They dId not react and were cooperatIve WIth her dunng the course of the inSpectIOn. The overwhelmmg weIght of the eye WItness testImony supports the conclusIOn that the other Inmates remamed calm and dId not respond to the mCIdent. I find as a fact that as Mr Forest was bemg escorted from the day room, he turned to Ms Ashley and saId m an aggressIve manner "you're fuckmg chargmg me because I'm black'" I also find as a fact that mstead of denymg thIS assertIOn and explammg once agam the reason for the charge, Ms Ashley agreed WIth Mr Forest, saymg somethmg lIke, "Yeah, because you're black." The eVIdence also strongly supports an mference that Mr Forest dId not make thIS assertIOn because he actually belIeved that he was bemg charged because he was black, but rather m an effort to agItate the other black Inmates m the day room. I find as a fact, however, that thIS effort was not successful There was no corroboratIOn by other eye WItnesses of Mr McKInnon's claim that at thIS pomt the agItatIOn of the other Inmates reached a crecendo and they began movmg from the doors of theIr cells toward the gnlle There also was no corroboratIOn of Mr McKInnon's eVIdence that after he and Ms Ashley left the day room. the Inmates rushed to the gnlle door and everyone m the comdor could see the door rattlmg and hear the Inmates yellmg In fact, Mr Walden testified that he dId not see any 26 lI1ll1ates approach the gnlle as he was locking It behind Mr McKinnon, Ms Ashley and Mr Forest. He also testIfied that he never felt threatened at any time and that dunng the incident he never had anv thought of pushing the pamc button. There seems to be httle doubt that once Ms Ashley and Mr Forest were in the corndor their angry exchange continued. Both of them were agItated and shouting at each other There also seems to be httle doubt that the argument between Ms. Ashley and Mr Forest continued when they reached the mactI ve area. It cannot be concluded, however that Mr Forest was so angry and upset that he was close to becoming phYSically vIOlent wIth Ms Ashley or anyone else No WItness other than Mr McKInnon seemed to thmk so Mr Walden testified that he dId not beheve that Mr Forest had to be restramed once he was outsIde the umt. Mr Forest walked to the mactlve area under hIS own power Mr ReId testIfied that he dId not have any sense that he was m danger whIle escorting Mr Forest to segregatIOn. WhIle Mr Forest was agItated, he saId, he wasn't hostile and he dIdn't feel threatened by hIm. At no time was Mr Forest placed in any restramts. IV The Health and Safety Issue- Counsel for the umon submItted that artIcle 18 1 of the collectIve agreement was breached whenever a managenal decIsIon unnecessanly added to the nsk to staff m a correctIOnal instItutIon. When the Floor Manager, Ms Ashlev conducted herself in a racIally provocatIve , 27 manner dunng her confrontatIOn with Mr Forest In the day room, It was submitted, her conduct breached thIS artIcle It was further submItted by counsel for the umon that artIcle 18 1 was also breached when semor management faIled to take appropnate actIOn to correct Ms Ashley's conduct. Counsel for the employer submitted, on the other hand, that whIle Ms. Ashley's response to Mr Forest's assertIOn of raCIsm was Inappropnate, It was not so severe as to nse to the level of a breach of artIcle 18 1 of the collectIve agreement. As to the alleged Inadequacv of the response of semor management to Ms. Ashley's conduct, It was submitted that semor management took appropnate actIOn and as a result, dId not breach artIcle 18 1 ArtIcle 18 1 of the collectIve agreement reads as follows 18 1 The Employer shall contmue to make reasonable prOVISIOns for the safety and health of Its employees dunng the hours of theIr employment. It IS agreed that both the Employer and the Umon shall co-operate to the fullest extent possIble In the preventIOn of aCCIdents and In the reasonable promotIOn of safety and health of all employees. Under thIS artIcle, the employer must, inter alia, make reasonable proVIsIOn to protect and promote the safety and health of all employees In a recent deCISIOn, Re Stewart and Ministry of Correctional Services (1994), G S B No 1916/93 (Kaplan) the Board described the burden of the umon m a gnevance under artIcle 18 1 28 of the collective agreement as follows There IS really no dIspute about the legal standard to be appl1ed. ArtIcle 18 1 reqUlres the employer to take reasonable precautIOns for the health and safetv of 11s employees. No workplace IS perfectly safe and for ObVIOUS reasons a correctIOnal mstItutIOn IS less safe than many Some nsk IS an ObVIOUS part of the job And under artIcle 18 1 the gnevmg party bears the burden of provmg that the nsk Imposed IS unnecessary or exceSSIve WhIle the Board does not reqUlre proof of actual harm before findmg that a health and safety gnevance succeeds, It does reqUlre cogent, dIspaSSIOnate and ObjectIve proof of a real possIbIl1ty of harm. Id. at 25-26 The gnevmg party must show through cogent, dIspaSSIOnate and ObjectIve proof that the conduct of management raIsed a real possIbly of harm. In the present case, thIS burden was not met. When the eVIdence was consIdered as a whole 11 dId not support Mr McKInnon's contentIOn that Ms Ashley's conduct raised a real possIbIl1ty of harm to hIm or her -- or, for that matter, to any other correctIOnal staff Certamly, Mr McKInnon perceIved that there was a real possIbIl1ty of harm, but hIS perceptIOn was not bourne out by the other eVIdence m the case In fact, the most dramatic aspects of Mr McKInnon's eVIdence were not corroborated, and m some cases contradIcted, by the eVIdence of the other eye WItnesses. As a result, It could not be found as a fact (1) that other Inmates m the day room reacted angnly to the mCIdent; (2) that Ms Ashley's affirmative response to Mr Forest's assertIOn that he was bemg charged because he was black further enraged the other mmates, (3) that the other Inmates began movmg toward the gnlle door m a nOISY and threatemng matter (4) that Mr Forest was 29 enraged to the pomt of becommg physIcally vlOlent, or (5) any other correctlOnal officer who was on the scene at or dIrectly after the tlme of the mCIdent shared Mr McKInnon's perception that there was a real posSlbIlItV of harm. When the totahtv of the eVidence IS revIewed m a dIspasslOnate and objectIve manner the conclUSIOn becomes mescapable that Ms Ashley's response to Mr Forest's accusatIon of raCIsm, though mappropnate, dId not nse to the level of a breach of the health and safety proVIsIons of artIcle 18 1 of the collectlve agreement. It follows that the response of semor management to Ms Ashley's mappropnate reply hkewlse was not a breach of the health and safety proVIsIOns of artIcle 18 I Ms Ashley was wrong when she saId somethmg hke, "yeah, because you're black" m response to Mr Forest's accusatIOn, "you're fuckmg chargmg me because I'm black'" I agree WIth the eVIdence ofMr DeFranco that casually dIsmIssmg a complamt of raCIal dIscnmmatIOn hke that constItuted an exerCIse of poor profeSSIOnal Judgment. Even If, as here, Ms. Ashley had good reason to beheve that Mr Forest dId not really thmk he was bemg charged because he was black, she should have explamed that thIS was not the reason why he was bemg placed on mIsconduct. Then she should have revIewed WIth Mr Forest the reason for the charge As It was, Ms. Ashley was formally counselled by senior management for her exerCIse of poor profeSSIOnal Judgment. ThIS was followed up by a letter recordmg thIS counsellmg seSSlOn, whIch undoubtedly found ItS way mto her personnel file Counsel for the umon submItted that thIS was not a strong enough measure to correct Ms. 30 Ashley's behavIOur because she asserted In her eVIdence that she stIll thought her reply was appropnate, In that agreeing wIth Mr Forest's insincere charge of raCIsm depnved hIm of a baSIS for continuing the argument. She also Said that she would do the same thing again In the same CIrcumstances I am mindful of the fact that thIS IS not an appeal from the deCISIon of management In the case of Ms Ashley but rather an arbItratIOn of a health and safety gnevance filed by Mr McKInnon. The adequacy of semor management's deCISIon In the case of Ms. Ashley IS not dIrectly at Issue here It IS only indIrectly at Issue, In the sense of whether It was adequate to correct an alleged health and safety VIOlatIOn created by Ms Ashley's conduct. Since It has been concluded that Ms. Ashley's conduct dId not constltute a health and safety VIOlatIOn, the Issue of the appropnateness of semor management's response to her conduct becomes moot. I wIll venture to comment, however, that I agree WIth much of what Mr DeFranco Said when thIS questIOn was put to hIm by counsel for the umon. Mr DeFranco refused to concede that semor management's counselling effort was ineffectIve Essentlally, he saId that It was one thmg for Ms Ashley to say that she would do the same thing agam but qUIte another for her actually to repeat thIS behaVIOr He remmded counsel for the umon that Ms. Ashley had been an employee for a number of years, and to hIS knowledge thIS was the first mCIdent of thIS nature m wluch she was Involved. 31 V Conclusion F or all of the above reasons, the gnevance is dismissed. Dated at Toronto Ontano this lith day of October, 1996 / A ,~M ~ ''''' / ~ R. Jaclt Roberts, Vice Chair /