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HomeMy WebLinkAbout2017-0364.Hastie et al.18-02-16 Decision Crown 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#2017-0364 UNION#2017-5112-0092 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hastie et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Brian Sheehan Arbitrator FOR THE UNION John Wardell Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Caroline Markiewicz Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING December 14, 2017 -2- Decision [1] The Employer and the Union at the Toronto South Detention Centre agreed to participate in the Expedited Mediation-Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation-Arbitration process, wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they would respectively rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and it is without prejudice or precedent. Background Facts [2] Bronson Sardinha and Jon Hastie are employed as Correctional Officers at the Toronto South Detention Centre. [3] On Tuesday February 14, 2017, Correctional Officer (CO) Sardinha, by way of an email, raised a concern with Staff Sergeant Daniel Copeland, who at that time was the lead member within the chain of command for B Tower, pertaining to the safety of Correctional Officers. In particular, CO Sardinha expressed the view that on the day shift, cell inspections on a unit should not take place until the arrival of the T10 shift CO; who is scheduled to commence working as of 10 AM. With that CO present — “manning the desk”—CO Sardinha suggested that the two COs working the T7 shift could then conduct cell inspections together as a team, which would significantly enhance their safety. [4] On Saturday February 18, 2017, CO Sardinha was working the T7 shift on Unit B4D along with CO J. Porowski. [5] At approximately 9:45 AM, CO Sardinha and CO Porowski decided, consistent with their view it would enhance their safety, to delay cell inspections on the Unit until after the scheduled arrival at 10 AM of the CO working the T10 shift that day. [6] As of 10:20 AM, the T10 shift CO had not arrived on the Unit; accordingly, at that time, CO Porowski phoned Sergeant Omar Lawrence who was in command of B4 Tower on that day. That phone call was not answered. -3- [7] At approximately 10:45 AM, Sergeant Lawrence arrived on Unit B4D and demanded to know why the cell inspections for the Unit had not yet been completed. CO Sardinha indicated that they were awaiting the arrival of the T10 CO before commencing cell inspections, and he referenced his previous overture to Staff Sergeant Copeland pertaining to this issue. Sergeant Lawrence indicated that in no manner had there been acceptance by the Employer of the suggestion advanced by CO Sardinha that inspections needed to be delayed pending the arrival of a third CO on the Unit. CO Porowski in his Occurrence Report regarding this incident described the discussion between Sergeant Lawrence and CO Sardinha as “heated”. [8] Ultimately, Sergeant Lawrence took the position that CO Sardinha was acting in an insubordinate matter, as he was failing to fulfil and discharge his duties in a diligent manner. [9] CO Sardinha then phoned CO Hastie and requested that CO Hastie attend Unit B4D as his Union Steward, as Sergeant Lawrence was threatening to level insubordination charges against him and CO Porowski. [10] CO Hastie and CO Sardinha attended the General Duty Office and had a conversation with Staff Sergeant Walcott regarding the situation. At the end of that conversation, CO Sardinha was advised to resume his duties and to follow up later with an Occurrence Report. [11] CO Hastie and CO Sardinha then walked back to Unit B4D. Upon arriving at the Unit, Sergeant Lawrence inquired why CO Hastie was seeking to enter the Unit and that he would not be allowed on the Unit without the floor manager’s permission. CO Hastie responded that CO Porowski had sought union representation, and he was there to speak to him. At that point, Sergeant Lawrence ordered CO Hastie and CO Sardinha not to enter the Unit and to stand in the hallway outside the Unit. CO Hastie and CO Sardinha waited in the hallway for approximately 10 minutes and without receiving further direction from Sergeant Lawrence, they returned to the General Duty Office. [12] At approximately 1 PM, CO Hastie did go back to Unit B4D and spoke to CO Porowski. -4- [13] The grievance filed by CO Hastie and CO Sardinha is essentially comprised of two allegations: (1) ) that Sergeant Lawrence had improperly threatened to discipline CO Sardinha for insubordination in relation to CO Sardinha raising a legitimate health and safety matter; and (2) that Sergeant Lawrence prevented CO Hastie and CO Sardinha from fulfilling their duties as Union Stewards in representing CO Porowski; and moreover, the act of ordering CO Hastie and CO Sardinha to stand in the hallway until further directed was highly embarrassing and degrading for both CO Hastie and CO Sardinha. Decision [14] Indisputably, it would be clearly improper for an Employer to threaten an employee with discipline as a reprisal for an employee raising a legitimate health and safety concern. The facts associated with this matter, however, are far removed from that scenario. In this regard, in my view, there was a legitimate basis for Sergeant Lawrence to, in fact, assert that CO Sardinha was potentially acting in an insubordinate matter. It is clear that Sergeant Lawrence had given a clear direction to CO Sardinha and CO Porowski to complete the cell inspections. CO Sardinha, rather than doing those inspections, sought to “convince” Sergeant Lawrence that it was not safe to do the inspections without a third Correctional Officer present. Sergeant Lawrence, in not accepting those safety concerns as being a sufficient enough reason for the work not to be performed, again directed the cell inspections be completed. With CO Sardinha continuing to assert that the work should be delayed, Sergeant Lawrence by advising CO Sardinha that he was acting in an insubordinate manner did not, in any way, abuse his supervisory authority by acting in a retaliatory manner. [15] Further to the above point, CO Sardinha was entitled to raise with senior representatives of the Employer, as he continued to do so, the issue of the need for the presence of a third CO when cell inspections were undertaken. However, unless at the time that Sergeant Lawrence issued the order, there was, and it would appear on the facts submitted there was not, an imminent threat to his or CO Porowski’s health and safety, he would not have had a basis to disregard Sergeant Lawrence’s direction. Accordingly, at a minimum, there would appear to have been an arguably justifiable -5- basis for Sergeant Lawrence to warn CO Sardinha that he may be disciplined for insubordination. [16] With respect to the alleged interference with the role of CO Hastie and CO Sardinha as Union Stewards, again it is imperative that an Employer respect, in accordance with the provisions of the collective agreement, the role of Union Stewards in representing a member of the bargaining unit who may be potentially subjected to discipline. Moreover, a Union Steward should not be subjected to intimidating and demeaning behaviour on the part of a representative of the Employer, on account of an assertion of a right to represent a member of the bargaining unit. At the same time, a Union Steward ought to be careful not to tarnish the legitimacy of the important right to represent bargaining unit members by asserting such a right in the absence of a true claim for such representation. [17] Pivoting to the facts of this incident, it is noteworthy that in the Occurrence Report filed by CO Porowski, there is no mention of a request for union representation. Arguably of more significance, there is no basis to conclude, on the submitted evidence, that CO Porowski was concerned about being improperly threatened with discipline for insubordination by Sergeant Lawrence; and it is clear that from Sergeant Lawrence’s perspective, the primary employee who was acting in an insubordinate manner was CO Sardinha. Accordingly, Sergeant Lawrence’s questioning of CO Hastie’s right to enter Unit B4D to speak to CO Porowski was, at a minimum, understandable. Moreover, Sergeant Lawrence could have been of the view that the assertion of CO Hastie and CO Sardinha that they were seeking to represent CO Porowski was a bit of a “power play”, on their part, in direct response to Sergeant Lawrence ordering CO Sardinha to complete the cell inspections as directed. [18] Moreover, even if it was concluded, and that conclusion has not been reached, that Sergeant Lawrence should have allowed CO Hastie into Unit B4D to speak to CO Porowski; and likewise, accepting that CO Hastie and CO Sardinha genuinely experienced embarrassment by being left out in the hallway, those acts in themselves, in my view, would fall well short of behaviour that would warrant the characterization of harassing or bullying behaviour on the part of Sergeant Lawrence. The jurisprudence is clear— harassment and bullying are serious words; and not “every workplace bruise” -6- will give rise to the rather significant finding that a supervisor improperly abused his/her authority such that the behaviour warrants to be characterized as harassment and/or bullying behaviour. [19] In light of the above reasoning, the grievance is, hereby, dismissed. Dated at Toronto, Ontario this 16th day of February, 2018. “Brian Sheehan” Brian Sheehan, Arbitrator