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HomeMy WebLinkAbout1987-2155.Ietswaard.88-08-04 Decision 1111 ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DeL 'ONTARIO GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 128 - BUREAU 2100 Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (P.J. Ietswaard) and The Crown in Right of Ontario (Ministry of Correctional Services) N.V. Dissanayake J. Solberg E. Orsini Vice Chairman Member Member For the Grievor: I. Roland Counsel Gowling & Henderson Barristers and Solicitors For the Employer: J. Benedict Manager Staff Relations Ministry of Correctional Services Hearing: .,... June 13, 1988 L I .J .~l Y- TELEPHONE/TELEPHONE (416) 598-0688 C /) '7 c- c:; '-2 J / L-- J.- - . 2155/87 Grievor Employer -2- DECISION The grievor, Mr. Peter J. Ietswaard, Correctional Officer employed at the maximum security jail at Owen Sound, Ontario, grieves that he was unjustly issued a letter of reprimand. The letter dated October 16, 1987, was signed by the then Superintendent of the jail Mr. W.A. Hoey, who the Board was sorry to hear, had since passed away. The letter of reprimand reads as follows: A meeting was held in my office on September 23, 1987 and you were represented by Mr. Michael Rowett, O.P.S.E.U. The purpose of the meeting was to discuss an incident as reported by Mr. Wootton, Shift Supervisor, which took place on September 5, 1987. At that time, you and Mr. Wootton were involved in a discussion over shift assignments and it was alleged that you made threatening remarks towards your supervisor. I have now had the opportunity to review this matter as presented to me on September 23, 1987, by yourself and Mr. Wootton. There is little doubt that a confrontation did occur between yourself and Mr. Wootton and it is my view that a formal reprimand is required in order to both deter you for further conduct of a similar nature and to bring your attention to the standard of performance expected of this institution's staff members. It is my expectation that this written reprimand will sufficiently communicate to you the need to improve your relationship with supervisory staff. I must also caution you that any further instances of this nature could result in more serious disciplinary ~ -3- action being taken. The Board heard evidence relating to the alleged incident. The facts relevant to the determination of this grievance are as follows. The grievor has been employed as a Correctional Officer with the Employer since 1976. He is also the local union president and Chief Steward and has held those positions for some ten years. On Friday September 4, 1987, he worked the night shift from 7:00 p.m. to 7:00 a.m. During the night shift it ~s not unusual for a Correctional Officer to be placed in charge of the shift. On this shift Mr. Jim Roberts was the Officer- in-Charge. The grievor found out that one of the inmates had been taken to hospital by the Shift Supervisor, Mr. Grant Wootton and that the inmate would remain in hospital for the duration of the Labour Day long week-end. Since this required a Correctional Officer to be posted for duty at the hospital, the grievor believed on a review of the shift schedule, that the Employer would need an additional officer to work the day shift on the Monday Labour Day holiday. He informed Mr. Roberts that if it was all right by Mr. Roberts, he would like to do the Monday shift. Mr. Roberts indicated he had no objections to that. ... -4- Accordingly, the grievor put himself down on the shift schedule for the Monday shift. Sometime during the shift, M~. Wootton returned from the hospital. The grievor informed him that he had put himself down for the Monday shift and Mr. at the time. At 7:00 Wootton raised no objections shift, the him that grievor again a.m., as he was signing off the met Mr. Wootton and reminded he was doing the Monday shift and again Mr. Wootton raised no objections. The grievor went home and went to bed. In the meantime, Mr. Wootton reviewed the shift schedule and determined that the Monday shift should be done by a "casual" Correctional Officer. Accordingly, he took the grievor off that shift. However, a need remained for a regular Correctional Officer for Sunday. Since he had taken the grievor off from Monday, he felt that he should inquire if the grievor was interested in working the Sunday shift. While Mr. Wootton agreed that usually it is not the practice of the employer to disturb an officer who had worked a night shift until the afternoon, since he knew that Mr. Wootton was married, he called the grievor's residence at about 10:00 a.m. with the intention of leaving a message with the grievor's wife to call him back when he wakes up. .C!1ll -5- Unfortunately, when the telephone rang both the grievor and his wife were ~n bed and the call woke up the grievor. His wife answered the call and s~nce the grievor had already been awakened by the ringing of the telephone, told the grievor that he might as well talk to Mr. Wootton. Mr. Wootton asked the grievor if he would like to work Sunday. He said he would not, because he was working on Monday. Mr. Wootton then informed that he had taken the grievor off the Monday schedule. A brief discussion ensued during which grievor asked Mr. Wootton whether he had changed the schedule to save money. When Mr. Wootton answered in the affirmative, the grievor attempted to explain that not much saving will result from the change. However, the conversation ended without any resolution. The grievor felt that if he had a face to face discussion with Mr. Wootton, he would be able to convince him that there will not be much saving resulting from the change made by Mr. Wootton. Accordingly, he drove down to the jail shortly after the telephone conversation. The grievor indicated to Mr. Wootton his desire to discuss the matter privately and they both ensured that they were alone. The grievor explained to Mr. Wootton that the employer will not save ~ -6- more than $25 or $30 by using a casual employee on Monday. According to the grievor, at this point the "tone got high on both sides". However, Mr. Wootton testified that, while the grievor was "yelling" he remained calm and refrained from arguing. In any event, Mr. Wootton told the grievor that he had no right to put himself on the shift schedule for overtime. The grievor replied that he had seen Mr. Wootton himself doing that many times. Mr. Wootton said he did not think he had put himself on the schedule for overtime. The grievor then said that he was going to keep a close eye on the shift schedule to monitor if Mr. Wootton assigns himself overtime. There is a direct conflict as to what was exactly said by the grievor at this point of the discussion. The grievor contends that he stated that he believed Mr. Wootton unfairly assigns himself overtime and that the grievor would be monitoring the shif~ schedule closely in the future. Mr. Wootton testified that that was the grievor's job as union steward and that he did not take exception to the grievor stating he would be monitoring the shift schedule. However, Mr. Wootton insists that the grievor also stated "I will get you three times over". This is what Mr. Wootton takes exception to. He testified that the grievor repeated these words a second time just before he went out .i& -7- through the electronic doors. The grievor vehemently denies that he made such a statement at any time. The evidence is that during the discussion, the grievor also objected to Mr. Wootton's calling them at 10:00 a.m. and waking him up. At the time Mr. Wootton explained to the grievor that his intention was to leave a message with the grievor's wife and that his wife had told him the grievor was awake. After the grievor left, Mr. Wootton made a report to the Superintendent about the confrontation with the grievor. In this report Mr. Wootton states, among other things, that the grievor twice made the statement "I will get you three times over". Mr. Hoey read the report and called a meeting for September 23, 1987, to review the facts relating to the allegation. At the meeting Mr. Hoey discussed Mr. Wootton's repor~ and questioned both Mr. Wootton and the grievor. They gave their versions of what happened. The evidence is uncontradicted that at that meeting the grievor denied that he had at any time during the confrontation used the phrase "I will get you three times over". Subsequently, Mr. Hoey issued the letter of reprimand which is the subject of this grievance. ~ -8- Mr. Benedict for the Employer, takes the position that on September 5, 198~, the grievor was insubordinate and threatening towards his supervisor and that for that conduct the Employer's modest disciplinary response is justified. H~ contends that the grievor was not acting in the capacity of a union officer when he confronted Mr. Wootton. In any event, while he concedes that a trade union official is entitled to discuss any concern with management and that sometimes the "niceties of conversation" may be forgotten, he submits that an employee has no right to threaten a supervisor. He also contends that by his conduct the grievor challenged the authority of the supervisor to change the shift schedule and that such conduct amounts to insubordination. Mr. Roland, for the grievor, contends that the grievor was not insubordinate and that he did not make any threat. He urges the Board to prefer the grievor's evidence over Mr. Wootton's. He submits that even if the Board finds that the grievor uttered the words as alleged, that is not a threat. Counsel relies on the wording of the letter of reprimand to argue that Mr. Hoey did not make a finding that the grievor engaged in threatening conduct. He points out that the only .:*. -9- reference in the letter is to an "alleged threat" and that the only finding Mr. Hoey made is that "a confrontation" took place. Therefore counsel submits that the grievor was disciplined not for threatening, but for confronting the supervisor. He points to the last paragraph where Mr. Hoey states that the purpose of the discipline is to communicate to the grievor the need to "improve his relationship with supervisory staff." Counsel submits that those are not appropriate grounds for discipline. On all of th~ evidence, it ~s clear that Mr. Hoey relied on Mr. Wootton's account of what happened as set out in his report. In the covering letter to Mr. Hoey attaching the report, Mr. Wootton specifically drew his attention to the grievor's "remarks of getting even with me". The report also formed the basis of the meeting on September 23, which preceded the issuance of the discipline. In these circumstances, the Board is not inclined to engage in a technical interpretation of the language ~n the letter of reprimand. We are satisfied that Mr. Hoey believed Mr. Wootton's account of what happened, including the alleged threat, and that the grievor was disciplined for that conduct. A -10- As noted 'before, the evidence relating to the alleged threat is in direct conflict and cannot be reconciliated. Counsel for the employer submits that Mr. Wootton's evidence is to be preferred because that evidence simply confirms what Mr. Wootton had set out in his report immediately after the incident and further that he has no motive to make up an allegation. On the other hand, counsel for the grievor points. out that the grievor has consistently denied ever having made the alleged statement, and specifically draws our attention to the uncontradicted evidence that the grievor made a clear denial at the meeting on the 23rd of September. In our view, it is not essential to resolve this credibility ~ssue to determine this grievance. We are prepared to assume, without finding, that the gr~evor used the words "I will get you three times over" during the conversation with Mr. Wootton on September 5, 1988. The Board does not agree with the Employer that ~he grievor was not acting as a union official when he was questioning the overtime shift issue. While he was pursuing a matter concerning himself, the fact is that when he confronted the supervisor he was also carrying out his mandate as a union official. It is not possible to isolate or separate his personal capacity from his ~~ -11- capacity as union official. Nor is the Board concerned that shift changes or assignments are not grievable under the collective agreement. That does not deprive an employee, whether he is a union official or not, from raising his concerns about an employer conduct or practice which he perceives to be unfair or arbitrary. Indeed the collective agreement specifically provides in article 27.2.1 that "an employee who believes he has a complaint .or a difference shall first discuss the complaint or difference with his supervisor." The Board first turns to a consideration of whether the grievor's conduct amounted to insubordination. The employer relies on a statement ~n Brown & Bea~ty, Canadian Labour Arbitration, at page 359 that "There appears to be general agreement that conduct and language which are insolent towards and contemptuous of members of management where such behaviour will amount to insubordination, involves a resistance to or defiance of the employer's authority." Suffice it to say that the grievor's conduct, unless we find that he made a threat, simply does not fit into that description. A contrary finding would be tantamount to a statement from this Board that a union official who forcefully questions the correctness of employer action -"'" -12- is engaging in insubordination. prepared to do. This we are not The Board next turns to the crux of this grievance. Namely, do the words "I will get you three times over" constitute a threat as would justify a disciplinary response from the employer. In interpreting the words used by the grievor (as we have assumed he did) it is important to place those words ~n the context of the whole discussion. It is clear that the grievor's words could not be reasonably have been taken as a threat of physical violence. There is no evidence that Mr. Wootton was frightened by the grievor's remarks. Given that there is no evidence that the grievor had a propensity for use of violence, Mr. Wootton could not have reasonably taken those words as a threat of physical harm. Indeed, the employer did not suggest that there was a threat of physical harm or violence. If there was no threat of physical violence, what kind of threat could it have been? Mr. Wootton did not testify as to what he understood those words to mean. The evidence indicates that once Mr. Wootton questioned the grievor's right to put his name down on the shift schedule for overtime, the whole discussion focussed on .>ill -13- whether or not Mr. Wootton had a practice of putting himself down for overtime. The grievor alleged tha~ Mr. Wootton did so and made it clear that he was going to monitor the shift schedule closely to find out if Nr. Wootton did so. We are of the opinion that taken ~n the context of this discussion, the only reasonable way Mr. Wootton could have understood the words "I will get you three times over" is that the grievor was going to monitor the shift schedule and expose any impropriety on the part of Mr. Wootton. If Mr. Wootton understood the words any differently he would have said so ~n his testimony. But he did not. We believe that the words chosen by the grievor to communicate his intentions were in bad taste and not appropriate. However, that does not necessarily justify a disciplinary response. Arbitrators have held that words uttered as a result of a momentary flare cause for discipline. up of temper are not by themselves See, Re Hiram Walker & Sons Ltd., (1973) 4 L.A.C. (2d) 291 (Adams); Re Canadian Westinghouse Co. (Canada) Ltd., (1966), 17 L.A.C. 427 (Palmer) . Here the grievor felt that he had put his name down for the holiday overtime shift with the approval of the officer in charge, Mr. Roberts. Mr. Wootton objected to this and the grievor believed that Mr. Wootton himself regularly did the same. Besides, -- -14- the fact that the grievor had been awakened by Mr. Wootton that morning had annoyed the grievor. Despite the good intentions of Mr. Wootton, the fact ~s that he did wake up the grievor after not more than a couple of hours sleep. While any flare-up or use of intemperate language against supervisors is not to be encouraged, what occurred here was a momentary bad choice of words by an employee/ union official forcefully trying to convince a supervisor that his actions were unreasonable. The discussion took place in private and no continuing hostility resulted from the confrontation. On the contrary Mr. Wootton testified that over ~he years he had enjoyed an excellent working relationship with the grievor and that excellent relationship has continued since the incident on September 5, 1987. Mr. Wootton agreed in his evidence that it was the grievor's right to monitor the shift schedule to ensure that overtime is assigned fairly. The Board concludes that the grievor made a poor choice of words to describe his intention to monitor the overtime assignments and expose any irregularity, something which is his right to do as chief union steward. The statement attributed to the grievor is not obscene or abusive. Considering all of the circumstances, including .... J -15- the context in which the confrontation arose, the Board is of the opinion that a disciplinary response from the employer is not justified. Accordingly, this grievance is allowed. The employer is directed to remove the letter of reprimand dated October 16, 1987 from all records. Dated this 4th day of August, 1988 at Hamilton, Ontario. 4/'- 'L-. ~?/~<- l....---' Nimal v. Dissanayake Vice Chairman ...... J. Solberg Member ~ E. Orsini Member ."..