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HomeMy WebLinkAbout2020-2919.Coull.24-04-15 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-2919 UNION# 2021-0108-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Coull) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Laura Johnson Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel HEARING December 6 and 8, 2022; June 23, July 19, October 25, November 16 2023; January 15 and February 1, 2024 -2 - Decision 1. This case involves a 15-day suspension issued to Corrections Officer James Coull (the “Grievor”) on February 12, 2021 in relation to conduct that occurred on January 18, 2021 while he was working in Unit 4 Left (“4L”) located in Elgin Middlesex Detention Centre (“EMDC”). It was undisputed that based on video footage from January 18, 2021 the Grievor was briefly observed not wearing his personal protective equipment (‘PPE”) correctly while on duty and was observed blocking the Close Circuit TV security Camera (“CCTV’) in the Unit 4L staff office with a plastic-hinged wet floor sign over the office door on two occasions during his shift. The CCTV camera remained blocked by the wet floor sign for two days and the fact of it being blocked came to the Employer’s attention when a staff member was reviewing CCTV footage related to COVID contact tracing in the institution. 2. The Union maintained that the Employer’s decision to place the Grievor on a 20- day paid suspension pending investigation and the ultimate issuance of a 15-day suspension was excessive. The Union argued that the discipline issued did not consider the mitigating circumstances of the Grievor’s 22 years of service with no prior discipline or the fact that the Grievor showed remorse and took immediate responsibility for his actions. In addition, the Union submitted that the discipline imposed was inconsistent with how another Corrections Officer was disciplined in a similar situation and was also inconsistent with how blockages of CCTV cameras within the institution had been condoned in the past. Furthermore, given the Grievor’s involvement in various Union roles at the institution, the Union took the position that the excessiveness of the 15-day suspension must be attributed, in part, to anti-union animus by the Employer. While recognizing that the Grievor’s actions did violate the health and safety rules in place at the time and were in violation of his role as a Corrections Officer, the Union suggested that a 4-day suspension would be an appropriate amount of discipline in this case and asked that I substitute that amount as the penalty. 3. The Employer submitted that it had reasonable grounds to not only place the Grievor on a paid suspension pending investigation, but also to impose the 15-day suspension because the Grievor’s actions put the health and safety of staff and inmates at the institution at risk. In that regard, the Employer emphasized that the Grievor’s actions took place during a critical period of the COVID Pandemic in which the institution was on lock-down due to a COVID outbreak making contact tracing critical. While the Employer acknowledged that the Grievor apologized and took full responsibility for his actions, it was not convinced that he understood that his actions of blocking the CCTV camera prevented contact tracing resulting in a health and safety risk. In addition, while agreeing that the observation of the Grievor’s face mask being improperly worn was for a very short period of time, taken together with him blocking the CCTV camera, the Employer asserted that the penalty imposed was reasonable. The Employer disagreed with the Union’s position that the 15-day suspension was in any way related to anti-union animus, that it was excessive compared to the penalty imposed on the other Corrections -3 - Officer or that the Employer had condoned similar acts of blocking CCTV cameras in the past. The Employer, therefore, asked that I uphold the 15-day suspension. 4. During the hearing I heard testimony from the following individuals: Mr. James Coull, the Grievor, Mr. Jeremy Brooks, Deputy Superintendent Operations, Mr. Brandon Reeves, Acting Deputy Regional Director of Compliance and Oversight Western Regional Office and Mr. Rick Kennett, EDMC Corrections Officer. Findings 5. I have concluded that this is an appropriate case to substitute a lesser penalty. In reaching this decision, I have considered the Grievor’s length of service, his remorsefulness, candid testimony, acceptance of responsibility and clean prior record. I have not found that anti-union animus was an underlying factor in the decision to discipline nor have I found that the Employer condoned the intentional covering or obstruction of CCTV cameras within EDMC. I have also determined that the Grievor was not deserving of discipline for the brief period of time that his PPE mask was under his chin and concluded that he, at most, was deserving of a letter of counsel like what was received by other Corrections Officers at that time. While another Correctional Officer received a 7 day suspension for covering a CCTV camera and was not really remorseful for their actions, I have determined that despite the Grievor’s mitigating factors referred to above, his act of intentionally covering the camera in Unit 4L twice during his shift on January 18, 2021 and then not taking the floor sign down resulting in a two day camera obstruction, was more serious conduct particularly given the context of the COVID Pandemic at that time. As a result, I have determined that a more appropriate penalty would have been a 10-day suspension. What follows is a fulsome review of the facts, evidence and legal analysis. THE FACTS 6. The Grievor began working as a Corrections Officer in 1999 and spent the majority of those years working at EMDC. During his career at EMDC he held a variety of Union positions including Union Steward, Vice-President, President and Treasurer. At the time of the incident, he was acting as a Union Steward and currently occupies the role of Treasurer. 7. On January 18, 2021 the Grievor was assigned to Unit 4L to supervise inmates who were performing kitchen work duties. At EMDC units that directly observe and supervise inmates (“direct supervision”) are divided into left and right sections with each section separately staffed. Normally the Grievor was assigned to Unit 9 performing the same role, but the work and supervision of inmates was moved to 4L on January 18, 2021. Unit 5, next to Unit 4L was on lockdown due to a positive COVID case. In addition, one of the Officers in Unit 4L had been deemed a close contact to someone who had contracted COVID. Based on the video footage from January 18, 2021 at 8:47 a.m. the Grievor was observed wearing his PPE mask under his nose. The recording then showed the Grievor with his mask back on, -4 - raising a plastic hinged wet floor sign above his head and placing it over the office door resulting in the CCTV camera being completely blocked. In both instances, other Corrections Officers were present in the Unit 4L office. One other Corrections Officer was also observed not wearing his mask properly. At 10:59 a.m. the video showed the wet floor sign falling down and coming close to hitting another Corrections Officer’s head. At 11:31 a.m. when the Grievor returned to the Unit 4L office, the video recorded him looking up at the door and then taking the wet floor sign off the floor and again placing it over the door in order to block the CCTV camera. During the January 18, 2021 shift, in addition to other Corrections Officers in the Unit, 2 members of Management entered Unit 4L. The CCTV camera remained blocked on January 19 and 20, 2021. The Grievor explained that he got busy dealing with transferring inmates back to Unit 9 at the end of the shift on January 18, 2021 and forgot to remove the wet floor sign off the door in the Unit 4L office. The other Corrections Officers who were present on January 18, 2021 received a 1-day suspension for their inaction in not removing the floor sign from blocking the camera in Unit 4L. On his own accord, the Grievor reimbursed those Officers for their loss of 1 day’s pay. 8. Unit 9 is not a direct observation unit and does not contain a CCTV camera in the staff office. Unlike Unit 9, Unit 4L is a direct observation unit which includes a staff office with windows looking directly into an inmate area. Because it is a direct observation unit, the area has a number of CCTV cameras installed which capture various angles including the hallway, inmate area and the entryway to the staff office. A CCTV camera is also mounted inside the Unit 4L staff office which captures the movement of staff in the office and a view through the office window looking into the inmate area. The Unit 4L staff office is not a large space such that during the Pandemic if 3 people were in the office they would not be able to maintain a 6-foot gap for social distancing within the space. In any event, on January 18, 2021 all staff were required to wear PPE as part of the Institution’s compliance with Public Health measures to help with COVID prevention. 9. On January 18, 2021, when the Grievor’s shift started, there were 14 inmates who were brought to Unit 4L with all but one inmate being disbursed to complete kitchen staff duties. At 12:45 p.m. the inmates returned to Unit 4L for a lunch break and then left the unit again at 2:30 p.m. to complete their work. One inmate remained in Unit 4L as it was his day off work. At 17:50 p.m. the inmates returned to Unit 4L and then were escorted back to Unit 9 by the Grievor. For the next 2 days, there were no inmates in Unit 4L, but staff were in the Unit to complete hourly fire checks and walkthroughs and could have been in the Unit 4L staff office to read log books or gather supplies. 10. Like all correctional facilities, within EMDC there are hundreds of CCTV cameras which are relied upon to track movement and the health and safety of inmates and staff throughout the institution. During the Pandemic, CCTV footage was also relied upon to track movement for the purposes of COVID contact tracing. In areas that did not have cameras, contact tracing had to be done using other methods like relying on log book records or otherwise. According to Mr. Brooks, although the Grievor had not worked in Unit 4L since it had been renovated with a new CCTV -5 - camera, the Grievor had worked in Unit 4 Right (“4R”) and the Admin and Discharge Unit (“A&D”) which both had CCTV cameras installed. 11. The Grievor submitted an Occurrence Report (“OR”) on January 21, 2021. In the OR, the Grievor explained that by putting the wet floor sign on top of the Unit 4L door to block the camera, he was trying to mimic Unit 9 which did not have a camera. He explained in hindsight that his actions were wrong, expressing that he was sorry and that the conduct would never happen again. He also stated that he did not take into consideration that contact tracing was being conducted and felt horrible that his actions made it more difficult to trace potential contacts. He also explained that leaving the sign up at the end of his shift on January 18, 2021 was not his intention and that it completely slipped his mind. In addition, while he did not remember whether his PPE was off or on, he explained that he did his best to use the PPE and that if it was off, it was done inadvertently. Finally, he assured that there was no malice or nefarious intent on his part and that he was happy to do anything to rectify the situation. The other Corrections Officers who were in 4L on January 18, 2021 also wrote ORs admitting that they saw the wet floor sign above the door and realized that they too should have taken steps to take the sign down given the importance of cameras in monitoring safety within the institution. 12. On January 22, 2021 the Grievor was placed on a non-disciplinary paid suspension pending the results of the Employer’s investigation regarding the blockage of the CCTV camera and failure to comply with proper PPE usage during the Pandemic crisis. On January 27, 2021 the Grievor was asked to attend at EDMC for an Allegation meeting during which five allegations were raised requiring the Grievor’s response. 13. The five allegations were as follows: 1. You were observed in Unit 4L improperly wearing your PPE, in that you did not have it covering your nose, as per direction. 2. While in Unit 4L, you placed a “wet floor” sign in front of the CCTV camera so as to block any recording of Unit 4L. 3. When the sign fell down from where you had placed it to block the camera, you returned it to its original position above the door, once again blocking any recording. 4. Through your actions, you tampered with CCTV and security equipment. 5. Through your actions, you put the health and safety of staff and inmates at risk in that 1) the placement of the sign could have fallen on someone entering and/or exiting the doorway; and 2) it prevented contact tracing during a COVID outbreak. 14. The Employer also stated that “As alleged, this conduct is not only a significant breach of trust but is also in contravention of applicable OPS and Ministry policies and procedures, including but not limited to, the Institutional Services Policy and Procedures Manual, the Elgin Middlesex Detention Centre Standing Orders, Superintendents’ Directives, the Statement of Ethical Principles and the Correctional Services Code of Conduct and Professionalism (COCAP).” -6 - 15. During the Allegation meeting the Grievor began his response by taking full responsibility for his actions noting that none of the other Corrections Officers present on January 18, 2021 played any part in the act of blocking the camera in Unit 4L. In response to Allegation 1, the Grievor explained that his intention was to always wear his PPE, that his actions were inadvertent and that he would be super vigilant moving forward. The Grievor admitted to Allegations 2 and 3 and noted that there was a short time between when he first put the sign up to block the camera and when he placed it up over the door again after the sign had fallen down from the door. The Grievor also agreed to the 4th Allegation that through his actions, he tampered with CCTV and security equipment. In terms of Allegation 5, the Grievor remarked that he took pride in his health and safety record, recognized the importance of the safety of staff and inmates and expressed that he was ashamed that his actions could have resulted in a colleague getting injured when the sign fell down from the door. With respect to the allegation that his actions prevented contact tracing, the Grievor apologized and expressed shame and disappointment that he restricted or limited the Ministry’s ability to do effective, accurate and efficient contact tracing but did not admit to preventing contact tracing. In terms of mitigating circumstances, the Grievor pointed out that on January 18, 2021, he was tired due to a poor night’s sleep, stressed due to the overall effects of COVID lockdowns, and was frustrated with being moved to Unit 4L rather than his usual work station in Unit 9 where no camera was present. He explained that due to his fatigue, stress, and confusion about working in Unit 4L he made uncharacteristic decisions on January 18, 2021 that, upon reflection, he knew were bad decisions that would not happen again. Although he did not mention it in his explanations, the Grievor also voluntarily resigned from his position on the Institutional Crisis Intervention Team (“ICIT”) as another measure of his remorse for his actions. 16. The summary of the January 27, 2021 Allegation meeting also noted that Mr. Brooks agreed that the Grievor was a good Corrections Officer whose actions on January 18, 2021 were inconsistent with past behaviour and that the Grievor was capable of learning from his actions in order to make responsible decisions in the future. 17. On February 12, 2021, the Grievor received a disciplinary suspension letter which confirmed that all allegations were substantiated and advised that he was receiving a 15-day suspension from February 12, 2021 to March 4, 2021. On February 12, 2021 the grievance before me was filed by the Union on the Grievor’s behalf. 18. Mr. Brooks testified that he had known the Grievor for approximately 20 years and that he and the Grievor had a good working relationship. He also stated that he expected better from the Grievor given his length of service and experience. He became aware that the Grievor had resigned from ICIT and testified that he was not involved in the Grievor’s resignation. In terms of the underlying reasons for issuing the paid 20-day suspension and the ultimate 15-day suspension, Mr. Brooks emphasized that the circumstances of the Pandemic at that time -7 - heightened the seriousness of the Employer’s actions and response. Specifically, Mr. Brooks noted that on January 18, 2021, the Institution had reported a COVID outbreak making contact tracing even more crucial at that time. Like all jails, EMDC was struggling with COVID outbreaks amongst inmates and staff putting pressure on the institutions for staffing and the health and safety of everyone in the building. As a result, according to Mr. Brooks, using CCTV footage for COVID contact tracing was critical. 19. Mr. Brooks testified that while he considered that the Grievor took responsibility for his actions, was remorseful and reiterated that he would not engage in such behaviour again, he felt that the Grievor did not understand that his actions in blocking the CCTV camera which resulted in the footage being blocked for two days, prevented contact tracing putting the health and safety of the institution at risk. Because the CCTV footage was not accessible for two days, Mr. Brooks explained that contact tracing for that time period had to be done manually which was time consuming and could be less accurate. Mr. Brooks was also very concerned that the Grievor covered the CCTV camera with the sign two times which made him believe that the Grievor’s actions showed malice. Balancing these concerns against mitigating factors of the Grievor’s long service, lack of prior discipline, his genuine manner in the Allegation meeting, Mr. Brooks still felt that the Grievor’s actions of placing the sign up two times, not removing it and his lack of understanding of the impact of his actions on contact tracing at such a heightened period during the Pandemic, together with improperly wearing his PPE, resulted in behaviour deserving of serious discipline. Mr. Brooks admitted that during the discussion of possible discipline outcomes, termination of the Grievor’s employment was raised, but that he persuaded the decision makers that a 15-day suspension was the appropriate response weighing all of the circumstances. 20. During the Grievor’s testimony, he reiterated the explanations given during the Allegation meeting and again apologized for his actions. The Grievor explained that he felt horrible that the sign was left up for two days and explained that he meant to remove the sign when he left Unit 4L on January 18, 2021 but removing it slipped his mind when he got busy transferring inmates back to Unit 9. He also stated that he was not aware that the contact tracing was being done and admitted to not reading the muster notes on January 18, 2021 which could have alerted him to the COVID prevention measures in place that day. While the Grievor agreed that in blocking the camera he caused a barrier to contact tracing, he testified that he did not prevent contact tracing or pose a health and safety risk, as there were other cameras in the Unit 4L unit which would have captured the movement of both staff and inmates. However, the Grievor did agree that while the hallway camera could capture the entryway into the staff office, by covering the camera in the office, Management would not be able to view the activities within the office. He did not believe that when the sign fell down that it could have caused an injury to his colleague. Although his explanation for blocking the camera was that he was trying to mimic the Unit 9 staff office, the Grievor also compared how the lack of a camera in Unit 9 would also not allow for CCTV contact tracing of the movement of staff. -8 - CONDONATION 21. The Grievor testified that on January 18, 2021 two Managers, Sergeants Fleming and Clancy, entered the Unit 4L staff office but neither asked that the sign be taken down to unblock the camera. He did admit, however, that neither saw him put up the sign and that while he saw Sergeant Fleming look up at the sign, he did not speak with her about it and could only presume that Sergeant Clancy saw the sign. Although the Grievor expressed that Management was aware of the sign and did nothing about it, he agreed that he did not mention this in his OR or speak with Mr. Brooks about his view that Management condoned his actions of blocking the camera on January 18, 2021 clarifying that he assumed the Managers had been spoken to and that he was simply answering the questions that were asked of him at the Allegation meeting. 22. The Grievor claimed that circumstances of cameras being blocked in the institution was a regular occurrence claiming that Management had not taken action when cameras were blocked in the past. In that regard, the Grievor believed that in light of such regular occurrences, his action in covering the camera on January 18, 2021 should have resulted in a lesser form of discipline when judged against the systemic circumstances. For example, the Grievor recalled how almost a decade ago he was present when another Corrections Officer placed an OPSEU flag over a camera in the A&D area and was simply told by the Manager to remove the flag without any issuance of discipline. He also alleged that in the A&D area that it was rare for cameras not to be covered and that for years Management was aware of cameras being covered. As a more recent example, the Grievor recalled how he was told by a coworker that between January 23 and 26, 2021, within the same COVID time period, a camera was covered in the A&D area and was not uncovered by the Correction Officers despite a direction to do so following which no discipline was issued. The Grievor also testified about how he understood and believed that the front door camera was often covered and condoned by Management, but did admit that he had not worked in that area and his knowledge was just from him working at EMDC. 23. Another Corrections Officer, Rick Kennett also testified about a camera being blocked in the A&D staff office area where he has worked since 2016. He explained that the A&D area is where inmates enter and exit EMDC, with 35 cameras in the total interior and exterior areas, but that the A&D staff office is not a direct observation unit and no inmates are permitted in that area. He advised that the only areas in A&D without cameras are the washrooms and kitchen staff room. He recalled that dating back to 2016, that a camera in the A&D staff office was blocked by an inmate property bag for a couple of years in the office area where the staff sit but he did not provide details or who placed the bag there. From his viewpoint, Managers would have been aware of a clothing bag hanging and blocking the camera, as the Manager’s office was in close proximity to the A&D staff office. Mr. Kennett testified that he was not aware of any bargaining unit member receiving discipline for blocking a camera. He did agree, however, that even in his role as a Union Steward, that he would not be aware of all discipline issued. He also recalled that in 2019 a camera was blocked due to boxes that -9 - were being stored in the A&D staff office. Mr. Kennett described how the A&D staff office was a fairly small space and because of the limited space the boxes had been stored in a pile that effectively blocked the camera for about four or five weeks. Although no one in Management asked for the boxes to be removed, the staff realized that they needed to access the doorway noting that where the boxes had been stored was not the best location. Finally, Mr. Kennett did not dispute that a clothing bag was taken down in January 2021 during the global Pandemic, but he was not able to recall that the clothing bag was removed for contact tracing. 24. Mr. Brandon Reeves, who was the A&D supervisor during 2018 and 2019, testified about his recollection about the A&D staff office space and camera. He explained that given the volume of inmates and lack of space in the office area, sometimes inmate property bags would be hung on the storage rack partially obstructing the camera’s view. He admitted that from time to time the camera was covered but did not agree that the camera was covered for long periods of time. From his point of view, Mr. Reeves explained that he did not view this type of situation as intentional given how tight they were for space in the office and noted how hanging the bag was very different to intentionally placing the wet-floor sign directly over a door blocking a camera. He also indicated that he did not recall an investigation of any camera blockage and noted that the camera footage was not regularly viewed by Management as the A&D office was a staff area. 25. Although Mr. Reeves was not the A&D supervisor in 2021, he also agreed that if the camera was blocked the sight line into the Manager’s office could be obscured which could have potentially interfered with contact tracing, but then qualified this statement by noting that the camera does not see into the manager’s office. He also agreed that the curtain that hangs in front of the kitchen area could have blocked contact tracing if it was fully closed but was not able to confirm the angle of the camera and did not recall seeing images of the area being blocked. SIMILAR CONDUCT 26. After receiving his 15-day suspension, the Grievor became upset when he discovered that another Corrections Officer received a 7-day suspension without a suspension pending investigation for what he believed to be very similar conduct. From the Grievor’s point of view, he believed that he was treated more harshly, in part due to his Union activity, and that his conduct on January 18, 2021 should have been treated similarly to the other Correction Officer’s actions. 27. Mr. Reeves testified that he was the decision-maker for the 7-day suspension discipline imposed on the other Corrections Officer on March 15, 2021 but that he was not involved with the discipline imposed on the Grievor. With respect to the 7- day suspension, Mr. Reeves explained that on January 17, 2021, the Corrections Officer, who was stationed at the Front Door entrance area, took two coats from the floor, and hung them up on the crossbar of the window frame effectively blocking the CCTV camera and security equipment. The obstruction of the camera became known during the institution’s contact tracing process that day. When -10 - instructed by Management to take the coats down, the Officer complied. However, the Officer explained that it did not cross their mind that the coats were covering the CCTV camera and mentioned that sometimes coats were placed in that location in the room so that Officers could more easily access their cell phones. That Officer was found to have tampered with CCTV and security equipment and consequently putting the health and safety of staff and inmates at risk by preventing contact tracing during a COVID outbreak. 28. The March 15, 2021 letter of suspension summarized that during the Allegation meeting with Mr. Reeves, the Officer stated that the cameras never crossed their mind when they hung up the coats on the window crossbar. In addition, the letter noted that the Officer was dismissive of the severity of the issue and was argumentative towards Mr. Reeves suggesting that the whole thing could have been handled by a phone call. The letter also confirmed that from Mr. Reeves perspective the Officer was not remorseful or accountable for the actions. 29. In his testimony Mr. Reeves explained that he did not view the Officer’s conduct as intentional because he believed their explanation that the action of hanging the coats was not done intentionally to block the camera and he was not able to prove that the acts were intentional. He also noted that the coats were not obstructing the camera for a long period of time and suggested that the obstruction lasted less than a day. Although he asked the Officer if they usually placed coats over the window cross bar, he did not agree, on cross examination, that he was aware of a practice of Officers doing that and stated that he just asked the Officer the question, qualifying that he did not work in the Front door area. He also explained that he did not place the Officer on a paid suspension because they did not meet the threshold for a paid investigation suspension which requires consideration of whether an Officer’s conduct poses a threat to inmates or peer groups or whether the conduct is sufficiently egregious that they should be removed from the workplace. In that regard, Mr. Reeves commented that he did not believe the Officer’s conduct would be repeated and would not pose a threat because of the short length of time that the camera was blocked and because the Officer immediately complied with the request to remove the coats. Mr. Reeves also stated that the Officer apologized to him initially on the phone, but agreed that during the Allegation meeting, the Officer showed limited remorse but he could not recall if an apology was offered in that meeting. He was certain, however, that he concluded that the Officer did not take responsibility for the actions even though they admitted placing the coats on the window crossbar. On cross-examination, Mr. Reeves agreed that had the Officer not been asked to remove the coats there would have been no way to ascertain how long they would have remained there blocking the camera. 30. In reaching the decision to impose a 7-day suspension, Mr. Reeves testified that he considered the Officer’s conduct in light of the health and safety impact of preventing contact tracing during a COVID outbreak. He also agreed that the fact that no responsibility was taken for the action of blocking the camera also was a factor in deciding the quantum of discipline. While Mr. Reeves was uncertain in his testimony of whether the Officer’s lack of remorse played a factor in determining -11 - quantum, he was certain that the Officer’s actions were not intentional and would not be repeated, leading to a conclusion that a 7-day suspension was appropriate in the circumstances of the Officer’s length of service and prior disciplinary record. Mr. Reeves also confirmed that the Officer was not part of the Union Executive at the time of the incident and suspension and was not a factor in impacting the quantum of discipline. ANTI-UNION ANIMUS 31. The Grievor testified that he believed that his Union involvement played a factor in the severity of his 15-day suspension when compared to how the other Corrections Officer’s 7- day suspension occurred. In general, the Grievor described how he often dealt with the administration on behalf of other Union members and how he thought the administration viewed him as “a pain”. He recalled how in 2015-2016, when he was the Union Vice President, the relationship with Management was very acrimonious in part due to inmate overcrowding and how he supported another Corrections Officer who had been terminated during the conflict. He recalled how Dave Wilson, in Management at the time, told the Grievor that he wanted to suspend him too. While acknowledging that the relationship with Management and the Union improved over time and that there was no conflict at the time when he received the 15-day suspension, the Grievor still felt that some members of Management who work at the Regional Office were involved in the decision to award a more severe penalty. 32. During cross-examination, the Grievor agreed that Mr. Wilson was no longer employed at EMDC in January, 2021. He also agreed that some of the other Managers involved in the 2015 conflict retired before January 2021.That left Ms. Wright, Mr. Smith and Mr. Phillips at the Regional Office who might have been involved in the 2015 conflict. In terms of other decision makers, the Grievor agreed that Mr. Chillman and Mr. Wardell, copied on the discipline summary notes, started working at EMDC after 2018. 33. Mr. Brooks was adamant that he did not consider any of the Grievor’s Union activity in reaching the 15-day suspension decision and that the topic was not discussed. He first commented that he thought it was honourable of the Grievor to support his colleague during the arbitration hearing of her termination from EMDC. He also confirmed that he only consulted with those listed on the disciplinary summary notes and that none of them worked at EDMC back in 2015-2016. In terms of any other conversations about the quantum of discipline, Mr. Brooks confirmed that he did not speak with Mr. Phillips, Mr. Smith, Ms. Wright or Mr. Wilson. Lastly, he did confirm that Ms. Wright was working at the Regional office at the time of the Grievor’s discipline. -12 - EMPLOYER’S POSITION 34. The Employer took the position, notwithstanding the Grievor’s apology and remorse for his actions on January 18, 2021 and his long service and discipline free record, that the health and safety risk in the institution caused by covering the camera in Unit 4L outweighed those mitigating factors. The Employer noted that EDMC was in a COVID outbreak at that time which made contact tracing even more important. In that regard, the Employer reviewed how Unit 5 was under lockdown for a COVID outbreak and how one of the Officers in Unit 4L had been deemed a close contact to someone who had contracted COVID so Management needed to follow his whereabouts in order to see who he was in contact with. In addition, although there were no inmates in Unit 4L on January 19 or 20, 2021, the reliance on cameras for contact tracing continued because staff were still required to walk through the Unit on an hourly basis for fire and security checks and might have also entered the staff office to read log books or get supplies. Finally, the Employer emphasized blocking the Unit 4L staff office camera created a security risk because, in a direct observation unit like Unit 4L, every camera is relied upon for security footage in the event of an inmate security breach. Although the camera blocked by the Grievor was in the staff office and obstructed one angle of the view into the inmate area, camera footage from that camera angle could have been important evidence had a security breach involving inmates occurred over the two- day period it was blocked. 35. In terms of the Grievor’s conduct, the Employer asked that I take into account that the Grievor purposely covered the camera on two occasions showing intent to interfere with the CCTV camera and security and that the length of the obstruction over a two day period was significant even if there were no inmates present in Unit 4L on January 19 and 20, 2021. As well, the Employer stated that it was significant from Mr. Brook’s viewpoint, that the Grievor, in his OR report, failed to mention his action of placing the sign over the camera a second time after it fell down. The Employer asked that I treat the Grievor’s actions of putting the sign up initially and placing it up again two hours later as two separate events contributing to the seriousness and intention of the behaviour. 36. While the Grievor stated that he was only trying to mimic the surroundings in Unit 9, the Employer noted that the Grievor testified that he had been assigned to offices in the past that had cameras installed and acknowledged that there were hundreds of cameras covering most areas of the institution. The Employer suggested that what really motivated the Grievor’s actions was not about replicating the Unit 9 staff office, but was his belief that cameras should not be in staff offices so that Corrections Officers and staff are free from surveillance. Understanding the Grievor’s actions from this viewpoint, the Employer argued that this underscored the Grievor’s lack of understanding of the importance of CCTV surveillance in determining health and safety risks generally and the importance of COVID contact tracing in January 2021. While the Grievor claimed that he did not know that the institution was doing contact tracing on January 18, 2021, the Employer noted that he was aware that Unit 5 was under a lockdown, but in any -13 - event, his lack of knowledge about contact tracing would not excuse his actions in covering the staff office camera. 37. In terms of the failure to wear his PPE properly, the Employer stated that the Grievor admitted to this allegation and that this failure, even for the short period of time it occurred, was another example of the Grievor’s lack of understanding of the risks associated with COVID spread that existed in January 2021. Taken together with his actions of covering the camera, the Employer maintained that his failing to wear his PPE correctly added to evidence of the Grievor’s lack of understanding of the health and safety risks at that time. 38. With respect to the Union’s position on condonation, the Employer maintained that the Employer never has condoned the intentional covering of cameras and claimed that the Union provided insufficient evidence to support the Grievor’s claims of condonation. First, with respect to Managers Fleming and Clancy who entered the Unit 4L office on January 18, 2021, the Employer argued the Grievor’s evidence bears little or no weight because they never saw the Grievor put the sign up, didn’t speak with him nor did the Grievor raise his belief of their condonation with Mr. Brooks at the Allegation meeting or in his OR. In addition, the Employer pointed to the evidence that the Grievor agreed it was his presumption that these Managers saw the sign. Secondly, regarding the evidence of a camera being covered in the A&D staff office, the Employer asked me to disregard the evidence about a flag being placed over the camera almost a decade ago. While the Grievor might have observed that incident and stated that only a verbal warning was given to the Officer responsible for placing the flag over the camera, no one else was called to substantiate his evidence about an event that took place years ago. Moreover, the Employer stated that those were very different circumstances compared to what was happening in 2021 during the global Pandemic. Thirdly, the Employer also asked that I give little weight to the evidence of a stack of boxes that had been piled up in the A&D staff office sometime in 2019, effectively blocking a camera. Looking at the evidence the Employer submitted that there was no evidence of intention to block the camera, considering Mr. Kennett’s evidence that the office area was small leaving little space for storage, that he did not know who stacked the boxes and that the boxes were moved once staff realized that the stack of boxes was blocking a door. Lastly, the Employer submitted that the evidence about inmate property bags being hung on a bar in the A&D staff office also does not show condonation or intention of blocking a camera. In that regard, the Employer asked that I prefer the evidence of Mr. Reeves over the evidence of the Grievor and Mr. Kennett. In that regard, the Employer pointed to the fact that Mr. Reeves agreed that he sometimes saw inmate clothing bags hung on the clothing bar . However, Mr. Reeves explained that it was not his understanding that bags were placed there intentionally stating that that there was a lack of real estate in the room. Furthermore, the Employer asked me to take note of Mr. Reeves' viewpoint that he never saw bags placed on top of a camera, like in Mr. Coull’s case where the sign was positioned over the door effectively blocking the camera. -14 - 39. In terms of the 7-day suspension issued for similar conduct by the other Corrections Officer on January 17, 2021, the Employer maintained that what made the Grievor’s conduct more serious was the finding of his intent to cover the camera on two occasions together and his failure to remove the sign at the end of his shift. In the other Officer’s case, while their conduct was serious and was found to have similarly prevented contact tracing placing the health and safety of inmates and staff in the institution at risk, Mr. Reeves was not convinced that the Officer placed the coats over the window bar intentionally to cover the camera and explained that the camera obstruction was less than one day. He also did not believe that the Officer would repeat the behaviour. Acknowledging that the other Officer took responsibility for their actions but showed limited remorse, the Employer argued that taken all factors together, the 7-day suspension imposed in that case was serious and warranted in those circumstances. 40. With respect to the anti-union animus allegations raised by the Union, the Employer acknowledged that the Grievor had been an active Union member for many years, including holding a Union steward position in January 2021 and referenced how Mr. Brooks admired how the Grievor supported a colleague back in 2015-2016. However, the Employer argued that the evidence falls short of proving that he was treated differently than the Officer who received a 7-day suspension or that he was dealt with more harshly because of his Union involvement. The Employer stated that it had reasonable grounds to place the Grievor on the paid suspension as part of its investigation process given that the Grievor admitted in his OR that he intentionally covered the camera and at that early stage of the investigation there was some concern about the Grievor repeating the behaviour. In addition, the Employer urged that I not give weight to any of the evidence about acrimonious times back in 2015 and 2016 between the Union and Management, not only due to the obvious delay but also because the Grievor testified about how labour relations had improved over the years without any suggestion of conflict at the time of his discipline. Finally, the Employer noted that the evidence was clear that Mr. Brooks had not consulted with any Managers left who were at the Regional Office who might have had interactions with the Grievor back in 2015 and 2015 about the decision to issue a 15 day suspension but instead consulted with a team including Mr. Chillman and Mr. Wardell who joined EDMC after that time period. UNION’S POSITION 41. The Union argued that while some discipline was deserving because of the impact of the Grievor’s actions, the issuance of a paid suspension and a 15-day suspension was excessive in the circumstances. In support of its position, the Union asked that I take into account the Grievor’s immediate acknowledgement and apology for the misconduct, his statement that he would not repeat the behaviour, his clear record, his nearly 25 years of service, his resignation from ICIT, and the fact that another Officer only received a 7-day suspension without being placed on a paid suspension pending investigation for very similar misconduct. -15 - 42. The Union also maintained that the evidence showed that there was a pattern of Management not acting when cameras were covered in the institution that were not in inmate areas, and in light of that, the Employer’s response to the Grievor’s actions was inconsistent with how camera obstruction had been condoned in the past at EMDC. In that regard, the Union stated that on January 18, 2021 two Managers, Clancy and Fleming witnessed the wet floor sign up above the door but took no action and were not questioned by the Employer during the investigation of the Grievor’s behaviour. While noting that the Grievor could only presume what the Managers saw or perceived, the Union argued that by not calling them as witnesses, I should draw an inference that the Managers condoned the Grievor’s actions. 43. The Union also argued that there were other examples of condonation which was supported by the testimony of Mr. Kennett and the Grievor about how inmate property bags were often hung up in the A&D staff office for years obstructing a camera with no discipline being issued. Additionally the Union noted that while Mr. Reeves disagreed that property bags were hung in a way to obstruct the A&D camera for lengthy periods of time; there was an acknowledgment that this practice occurred, although not consistently. The Union also pointed to the Grievor’s evidence about another officer placing a flag over a camera in the A&D office and who did not take the flag down despite a management direction but who was not disciplined for the action. Although this latter incident occurred many years ago, the Union argued that it still was an example of condonation not disputed in the evidence which showed a continuing pattern on the part of the Employer not taking action where cameras were covered in areas that did not capture the movement of inmates. Finally, the Union asked me to review the evidence of the stack of boxes in the A&D office as another example of how obstruction of cameras continued to exist without any repercussions from Management. 44. Comparing the 7-day suspension issued to the other Corrections Officer, the Union questioned why the Grievor was treated more severely especially, and in particular placed on a paid suspension, given that the circumstances of COVID and the impact on contact tracing was the same. In addition, the Union claimed that the evidence showed that the Grievor was immediately remorseful for taking responsibility for his actions compared to the other Corrections Office who did not show remorse and who was dismissive and argumentative with Mr. Reeves as noted in the 7-day suspension letter. While Mr. Reeves testified that he believed that the other Corrections Officer did not intentionally block the camera and showed limited remorse, the Union suggested that it appeared that Mr. Reeves was downplaying the actions when compared to the tone and wording of the suspension letter he wrote. Lastly, the Union asked that I consider other mitigating factors about the Grievor’s conduct in that he took full responsibility stating that other Officers played no role in covering the camera on January 18, 2021 and that he personally reimbursed the Officers who received a 1-day suspension for their failure to take any action that day. -16 - 45. In terms of the discipline imposed for failing to wear his PPE properly, the Union submitted that the standard discipline for most staff was a letter of counsel and only when the staff member failed repeatedly to abide by the PPE rules was that member subject to a greater penalty. Again, the Union alleged that the Employer’s response regarding the Grievor’s PPE breach was incongruent with his brief breach of PPE protocol and did not consider the Grievor’s explanation that the breach was inadvertent. 46. The Union raised the allegation that anti-union animus was a motivating factor in this case as there was no other explanation for why the Grievor was treated so differently than the other Officer who engaged in similar conduct when he had so many mitigating factors at play. The Union asked that I draw an inference that anti- union animus played a part in the decision-making process, and as such, I should consider this factor as another reason to reduce the quantum of discipline. For example, the Union questioned why Mr. Brooks was so concerned about the Grievor’s behaviour, so much so that the Grievor was placed on a paid suspension pending investigation. In that regard, the Union asked that I question Mr. Brook’s testimony that he was concerned for the safety or risk by keeping the Grievor at work given that Mr. Brooks agreed that the Grievor’s responses were credible. Moreover, the Union noted in the final stages of decision making about the Grievor’s conduct, discussions occurred that could have been known to some members at the Regional Office who had crossed paths with the Grievor in his Union capacity. In addition, the Union argued that because there was mention of termination during the discipline discussion that was a further example of consideration of an even harsher penalty that could reasonably be tied to anti- union animus against the Grievor. Case Law 47. The Parties agreed that the case law supports the notion that health and safety infractions in the workplace are considered one of the most serious workplace infractions and that discipline should be reflective of the seriousness of the risks involved as noted in International Union of Elevator Constructors, Local 50, Applicant v OTIS Canada Inc., Responding Party, OLRB Case No: 0029-22-G 2023 CanLII 15002 (ON LRB) at paragraph 48. 48. The Employer submitted that wilful destruction of an Employer’s property is viewed as one of the most serious offences by Arbitrators and asked me to consider that the Grievor’s acts of covering the camera in Unit 4L effectively had the same outcome as a damaged camera since the camera was obstructed from producing video surveillance which resulted in the prevention of contact tracing. 49. The Employer also noted that while there are no cases within the GSB jurisprudence regarding camera surveillance tampering; there have been cases regarding the limits on the use of surveillance cameras which highlight the importance of CCTV camera footage within correctional institutions. The Employer relied on the GSB decision in Ontario Public Service Employees Union (Union) -17 - and The Crown in Right of Ontario (Ministry of the Solicitor General) GSB No. 2019-2154 (Anderson – September 17, 2021) as support for the accepted principle that the Employer has the right to engage in surveillance of its correctional facilities for safety and security reasons. 50. Outside of Corrections, the Employer relied on the case of Sudbury Mine, Mill and Smelter Workers Local 598, Unifor v. Sudbury Integrated Nickel Operations (Glencore) , 2022 CanLII 85750 (On LA) in which a discharge of a long service employee was upheld involving circumstances where the employee not only failed to wear safety equipment while working around an open pit but asked his co- worker to cover the surveillance camera to in order to hide his actions from the employer. While acknowledging that the behaviour in that case was more egregious than the Grievor’s in the instant case, the Employer urged me to consider how long service and absence of prior discipline as noted by Arbitrator Rogers: “ pale in significance to the grievor’s calculated determination to err on the side of risk - contrary to all of his training as a trusted employee- to ignore the possibility that he was disregarding requirements that the Employer enforced or threatened to enforce with discharge and to sabotage the Employer’s video surveillance to avoid its detection of his intentional wrongdoing” ( at paragraph 82). 51. The Employer also provided cases in support of its position that the Grievor’s failure to adhere to the PPE policy was deserving of discipline. First, while not a discipline case, the Employer relied on the decision in UFCW, Local175 and Highbury Canco Corp. (Failure to Accommodate), Re] 351 L.A.C. (4th) in which placing an employee on a leave of absence who had a phobia about wearing a face mask was not considered as a failure to accommodate a disability when considered against how critical health and safety directives were, such as implementing a face mask policy as a means to prevent rapidly spreading COVID. In OPSEU (Miller-Foster) v Ministry of the Solicitor General, GSB No. 2021-0563 a Corrections Officer at EDMC received a 3-day suspension which was upheld for failing four times to wear appropriate eye protection as required by the Employer’s 2021 health and safety Directive based on Public Health’s COVID prevention guidelines. In that case, given the multiple infractions and failure to adhere to the Directive created a health and safety risk at a critically infectious time during the pandemic, the Arbitrator concluded that the behaviour transcended the usual need for modest progressive discipline (at paragraph 173). While recognizing that the Grievor was observed breaching the PPE face mask requirement for a short time period, the Employer still urged that taken together with his actions of covering the camera showed a disregard for health and safety and was deserving of more than a letter of counsel. 52. The Union asked me to consider the principles of progressive discipline as noted in Morton Mitchnick & Brian Etherington, Labour Arbitration in Canada, 3rd Ed., Toronto, ON 2018 at s. 10.9.3: “Progressive Discipline '' at page 295 which notes “that most arbitrators accept that implicit in the concept of just cause is a requirement to take a progressive or corrective approach to discipline before resorting to the ultimate penalty of discharge”. In addition, the Union pointed to the passage beginning in the mid-1970’s, many arbitrators adopted the view that the -18 - norms of progressive discipline that focus on the grievor’s rehabilitative potential should also be applied to very serious misconduct. Applying these principles, the Union argued that even within the context of the COVID Pandemic, the principles of progressive discipline should not be disregarded. In that regard the Union asserted that the Employer did not sufficiently consider that the Grievor’s conduct with respect to both the PPE and his covering of the camera were isolated incidents displaying moments of poor judgement that showed uncharacteristic behaviour by the Grievor. 53. The Union also referred me to case law with respect to the difficulty in proving anti- union animus as witnesses do not tend to admit that union involvement might negatively impact the quantum of discipline. As noted in OPSEU v. Ontario (Bisaillon), 2016 CanLII 48167, (B. Herlich), at paragraph 18, that because of the seldom acknowledgement of anti-union animus, proving the allegation is more a matter of inference based on all of the evidence. In addition the Union noted how an active Union member, such as in the Grievor’s case, should not be held to a higher standard when examining conduct worthy of discipline as confirmed in Nav Canada v. C.A.T.C.A., 1999 Carswell Nat2311 (Brown) at paragraphs 29-33. Applying these principles to the Grievor’s case, the Union argued based on the evidence as a whole, the only rationale for the 15-day suspension had to have been influenced by someone at the Regional Office such as Ms. Wright, who knew the Grievor in the past and who would have wanted a more severe penalty due to the Grievor’s Union activism. 54. The Union also submitted that in assessing the penalty and applying my discretion to reduce the penalty, I need to differentiate the Grievor’s conduct from other cases where an employee engaged in a serious safety infraction or purposely covered a surveillance camera in order to hide misconduct from an employer. In that regard, the Union distinguished the instant case from the decisions in Otis, supra, where the failure to wear a safety harness was deemed to be a serious safety infraction and in Toronto v. CUPE, Local 79, 2008 CanLII 48633 (ON LA) (G. Luborsky), where an employee covered a surveillance camera in a city parking garage in order to hide him moving his vehicle to disabled parking area where he had yet been given permission to park, or in the Sudbury Mines, supra case where an employee asked a coworker to cover the camera in order to conceal his actions. Decision 55. Having reviewed the evidence and the thorough submissions of both Counsel, I have concluded that the appropriate penalty in the circumstances would have been a 10 day suspension. I have found that there were sufficient differences in the Grievor’s conduct compared to the other Correction Officer’s conduct on January 17, 2021 to support a higher penalty for the Grievor, but have taken into account that he would have been deserving of a letter of caution for his brief failure to wear his PPE together with his candid testimony and accountability for his actions in support for reducing his suspension. -19 - 56. I have also determined that the Union has not proved that the penalty imposed by the Employer was based, in part, due to anti-union animus or that there was a pattern of condonation by the Employer of cameras being obstructed, particularly in direct observation areas of EMDC. 57. My decision is also made within the context of the state of the COVID Pandemic in January 2021 which was a time when COVID was rampant, people were sick and dying, hospitals were under severe strain and before vaccines were made available to the general public. Correctional institutions were faced with continual COVID outbreaks involving critically ill people within the inmate and staff population, resulting in staff shortages either due to illness or staff required to isolate at home, as per public health regulations, because of COVID contacts. Because of the state of the Pandemic, contact tracing became one of the main tools for determining COVID risk and contamination and was relied upon for health and safety measures within Correctional facilities like EMDC. Moreover, the use of CCTV cameras and video surveillance footage became even more critical for contact tracing because it was more accurate and likely more reliable than contact tracing manually through log books or phone calls and people’s memory. Within this health and safety context, blocking the CCTV camera in the Unit 4L office was a serious offence as it prevented the ability to contact trace in real time the movements within that office over a two-day period forcing the Employer to use resources to manually work backwards to contact trace during a critical time in the Pandemic. 58. While the Union did not dispute the seriousness of the state of the Pandemic in January 2021 or that the Grievor’s conduct was in violation of the health and safety measures at EDMC, I accept the testimony of Mr. Brooks that the Grievor’s conduct was considered serious and intentional to warrant placing the Grievor on a paid suspension pending investigation. Although the Grievor apologized and explained his actions in his initial OR, he did not mention placing the wet floor sign over the door a second time, so it is understandable that Mr. Brooks viewed the actions as intentional and it was reasonable for him to consider the risk of the Grievor remaining at the workplace and repeating the behaviour when the institution was in a COVID outbreak requiring constant contact tracing. 59. Unlike the other Corrections Officer’s conduct on January 17, 2021, I am satisfied based on the testimony of both Mr. Brooks and the Grievor that he intentionally used the wet floor sign twice over a two-hour period to cover the camera in order to prevent surveillance of staff in the Unit 4L office. In that regard, the Grievor was clear that he was not happy about being stationed in Unit 4L and that he wanted to replicate the Unit 9 office that did not contain a camera presumably because he did not like camera surveillance in staff offices. While the Unit 4L office camera was aimed at one angle of the inmate area through the office window, I agree with the Employer that every camera angle is crucial in recording of any health and safety violations within the direct observation inmate area and that the obstruction of that camera is a serious violation of the care, custody, control of the inmate population. While there was no allegation that the Grievor engaged in the behaviour to conceal misconduct, the camera obstruction prevented the Employer -20 - from performing any contact tracing inside the office, as there was no footage of what occurred in that office over a two-day period. In this regard, although there was camera footage of the hallway and entryway to the office, the Employer could not see if those who had entered the office had taken off their PPE equipment in the small office space. In addition, from my perspective, the absence of inmates in the Unit 4L area on January 19 and 20, 2021 does not lessen the impact of the Grievor’s actions. The evidence was clear that staff did hourly walkthroughs and fire safety checks or may have entered the Unit 4L office to gather supplies, and therefore, there would have been no footage for contact tracing once staff were in the office during the two-day period that the camera was obstructed. 60. Although I do not believe that the Grievor covered the camera to purposely hinder COVID contact tracing, his actions showed that he did not appreciate or consider the health and safety risks that covering the camera in Unit 4L office had an immediate negative impact that prevented complete contact tracing in the Unit 4L office. What makes the behaviour more critical is that the Grievor covered the camera two times over a two-hour period. Instead of leaving the sign on the floor after it had fallen down, he put the sign back up over the door and then forgot to take it down resulting in the camera being obstructed for two days during a period of a COVID lockdown when contact tracing was an essential tool. In contrast, based on the evidence of Mr. Reeves, I believe his conclusion that the other Corrections Officer did not intentionally cover the camera in the Front door area (not a direct observation area), which was obstructed for a shorter period of time and that he believed that the conduct would not be repeated, despite the lack of remorse. In addition, even considering Mr. Reeve’s acknowledgement that had that Officer not been told to remove the coats resulting in the uncertainty of how long the camera obstruction in the Front Door area would have remained, I am still convinced that the difference in the Grievor’s case was his intent to block the camera. 61. In terms of the Grievor’s failure to wear his PPE, I view this as a separate incident in which the Grievor was seen with his face mask below his nose for a few seconds when he entered the Unit 4L office. This breach was comparable to similar breaches of the PPE requirements which resulted in other staff receiving only letters of counsel. In comparison there was no evidence that the other Corrections Officer who had his mask down in the Unit 4L office on January 18, 2021 received discipline for the infraction. While the Employer explained that it viewed the PPE breach as another example of the Grievor not taking COVID health and safety precautions seriously, the evidence showed that the Grievor’s facemask was below his nose very briefly, and done inadvertently. Even Mr. Brooks accepted the Grievor’s explanation about the PPE as credible and therefore, I am not satisfied that this breach should have been bundled together with the other allegations as part of the justification for the 15-day suspension. The Grievor’s PPE breach is very different from the one in Miller Foster, supra, where a 3-day suspension was upheld for a Corrections Officer at EMDC failing to wear his PPE goggles on four occasions despite following reminders and requests for ORs from the Employer. -21 - 62. The Union’s evidence about condonation did not persuade me that the Employer had condoned the intentional obstruction of CCTV equipment within the institution, particularly in a direct observation area. Although the Grievor testified about a colleague placing an OPSEU flag over a camera, that evidence related to an event that took place almost a decade ago, in very different circumstances. As a result, I am not prepared to give any weight to this evidence. Considering the evidence about a camera being regularly blocked in the A&D staff office, I do believe that inmates' property bags were often placed on the rack in a way that ended up obstructing or partially obstructing the CCTV camera. However, I am not convinced that this was either done intentionally or that by not asking for the bags to be taken down, that Management condoned cameras being covered. Given the tight space available for storing inmate property in the A&D staff office, which was confirmed by all of the witnesses, it makes sense that bags were stored over the rack when needed. Mr. Reeves did testify that bags were sometimes hung in that way due to lack of real estate in the A&D staff office and that because it was a staff area, video footage was not regularly viewed. Neither Mr. Kennett or the Grievor were able to identify who might have placed inmate property bags on the rack nor did they have any specific examples about the length of time bags may have blocked the camera other than stating that this practice occurred over a long period of time, such as two years as mentioned by Mr. Kennett. In addition, even though Mr. Kennett claimed that no one was disciplined for blocking the camera in the A&D staff office; he did agree that in his capacity as Union Steward, he would not be aware of all discipline that occurred. I am not prepared to give any weight to the Grievor’s evidence about the Front door camera being regularly blocked as he did not have any direct knowledge of his claim other than stating that he knew about it because of working at EDMC. Lastly, while a Corrections Officer may have been asked to remove an inmate property bag off the rack in the A&D staff office in January 2021 without the issuance of discipline, the Grievor also did not have any direct knowledge about this incident other than being told about it by a colleague while he was on the paid suspension. As a result, I am not prepared to give any weight to this evidence. 63. Similar to my findings about the camera obstruction from inmate property bags, I also am not persuaded that the blockage of a camera in the A&D staff office was condoned when boxes were piled up. First, there was no suggestion that the boxes were stacked in order to block the camera. Second, Mr. Kennett’s evidence was that there was limited space in that office resulting in the staff stacking the boxes in an area where they could find room. Thirdly, Mr. Kennett explained that once the staff realized that the boxes were blocking a doorway, they moved them which was done without any direction from Management. 64. I am also not convinced that the Union has shown that the Managers who were in the Unit 4L office on January 18, 2021 condoned the Grievor’s behaviour. First, the evidence was clear that neither Manager knew who placed the wet floor sign above the door. Secondly, the Grievor admitted that they did not speak with him that day, so it is questionable how he might have known that condonation took place. Thirdly, while the Grievor claimed he was only answering the questions put to him at the Allegation meeting, he did raise a number of mitigating factors, said -22 - that the other Officers were not to blame together and provided a detailed OR and notes. In contrast, his failure to raise his concerns that Managers Clancy and Fleming did nothing about the sign suggests that he was not focussed about condonation at the time of the incident, when he wrote his OR, or when he had an opportunity to defend his conduct at the Allegation meeting. Given the lack of evidence about their actual involvement on January 18, 2021, I am not prepared to draw an inference of condonation on the basis that neither Manager was called as a witness. 65. With respect to the Union’s allegation of anti-union animus being a factor in the severity of the discipline issued, on the evidence as a whole, I find no basis to infer that was an underlying factor. Applying the principle in Nav Canada, supra that Union officials should not be held to a higher standard, I am not convinced that the Employer viewed the Grievor in that way. Although Mr. Brooks mentioned how he expected better from the Grievor given his years of service and experience, I cannot equate that expectation to placing the Grievor at a higher standard because of his Union activism. In addition, while the Grievor may have believed that his Union involvement was a factor in the Employer’s decision-making, Mr. Brook’s evidence was that he, for instance, admired how the Grievor supported another Corrections Officer at the arbitration involving her termination of employment in 2015-2016. Mr. Brooks also clearly testified about who was involved in his decision-making process. He explained that he did not have conversations about the Grievor’s case with anyone at the Regional Office who may have known the Grievor back in 2015-2016 during an acrimonious period between the Union and the Employer when the Grievor was on the Union Executive. In any event, some of the key players from 2015-2016 have also either retired or no longer work at EDMC which lends further credence to Mr. Brooks’ testimony that he did not speak with anyone other than the decision-making group. More significant was the Grievor’s evidence that while labour relations were acrimonious back in 2015-2016, he testified how things had improved and that at the time of his discipline there were no labour relations conflicts. Despite the Grievor testifying that he believed that Management viewed him as a “pain” because he advocated for Union members, he did not give any concrete examples of any recent challenges with Management in his role as a Union Steward, and as a result, I can only conclude that the Grievor’s assumptions about anti-union animus are not supported by the evidence. 66. I do agree with the Union, that the Grievor’s case differs from violations of health and safety rules that occurred in the cases provided by the Employer that involved employees intentionally obstructing camera surveillance in order to conceal misconduct, and therefore, I do not find those cases to be applicable. However, within the context of the Global Pandemic in January 2021, I still find that the Grievor’s actions were a serious violation of health and safety measures that took place in a direct observation unit which resulted in the prevention of contact tracing over a two-day period. While the Employer may have subsequently been able to retrace contact tracing efforts for the two-day period, the risk of not catching contact tracing in real time was significant given that EMDC was in a COVID outbreak on January 18, 2021. As a result, I find that despite all of the mitigating -23 - factors provided by the Grievor, applying the principles of progressive discipline, his misconduct justified a higher form of discipline due to its serious nature. 67. In conclusion, I find that the Grievor should not have been disciplined for his failure to wear his PPE properly on January 18, 2021 and at most was deserving of a letter of counsel for that breach. I also have determined that, in the circumstances, the 15-day suspension imposed on February 12, 2021 was excessive and that it should be substituted with a 10-day suspension. 68. The Employer is required to reimburse the Grievor for 5 days of the suspension he served. The Employer will also work with the Union to finalize the amount owing to the Grievor for the statutory day payment that is due. Dated at Toronto, Ontario this 15th day of April 2024. “Dale Hewat” Dale Hewat, Arbitrator