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HomeMy WebLinkAbout1983-0172.Wilson.83-06-29172/83 168/83 169/83 IN THE MATTER OF AN ARBITRATION Under 'THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: June 14, 1983 OPSEU (Kevin Wilson) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer J. W. Samuels Vice Chairman L. Robbins Member B. Lanigan Member P. J. J. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors R. B. Itenson Senior Staff Relations Officer Staff Relations Division Civil Service Commission 170/83 171/83 173/83 INTRODUCTION 2- The grievor filed six grievances inresponse~to a five- day suspension issued on January l&1983, which related to the griever's absence from work without authorization on September 21, 1982. At our hearing, the Union withdrew five of these grievances (168/83! 169/83, 170/83, 1?1/83, and 173/83), and proceeded with only one of them (172/83). In this grievance, it is alleged that: I have received a capricious and unjustified letter of reprimand dated January 11, 1983 and an unwarranted 5 day suspension. This penalty constitutes double jeopardy, was imposed as a result of external pressure, implied that a concerted work action occurred and was delayed to the point where it caused severe emotional hardship for me. And the settlement required is: That the suspension and letter of reprimand dated January 11, 1983 be removed; that all lost wages, seniority and benefits be reinstated and that the Ministry acknowledge in writing the responsible manner in which I acted. The grievor is a Rehabilitation Officer 2, engaged at the Toronto Jail. He is the local Union President, sits on the Board of Directors of the Union, and was responsible for the four Toronto jails in organizing the protest demonstration which occurred on September 21, 1982, at Queen's Park. This was the day announced by the Government of Ontario for the introduction of wage restraint legislation. While the precise tgrms of the new bill were not yet known, there was wide well-founded speculation that this legislation would involve limi- .- -2 -3- tations on wage increases in the public sector, and rollbacks of i wage provisions in existing contracts. The public service unions were deeply concerned about this legislation, and a public demon- stration was called for on September 21 at 1:00 PM in front of the Legislature. Posters were widely distributed to encourage public sector worker~s to attend the rally. Exhibits 2 to 8 were entered as evidence at our hearing, and illustrate the sort of material wh ich was abroad. While the general tenor of these posters conveys a large measure of anger, there is little suggesting an illegal job action. Employees were encouraged to ask for a vacation day, book off .sick, claim compassionate leave or personal leave or special leave. In several, there was also the suggestion that the employee should attend the rally even without leave. And in one poster (Exhibit 21, produced under the OPSEU logo, it was said that if the employee does go without leave, "we'll handle your grievance". For some time before September 21, managers in the public sector discussed how they should deal with what they feared might be a significant, and possibly illegal, work stoppage on that day. There were consultations between Ministries. The Ministry of Correctional Services has some 4,000 employees in the bargaini~ng unit. There are roughly 800 to 900 in the four Toronto jails, and some 200 at the Toronto Jail itself. On September 17, Mr. V.J. Crew, the Director of the Ministry's Personnel Branch, issued a memorandum to the managers in the Ministry setting out the way in .-. .,. - 4 - which requests for leave and absences on September 21 should be dealt with: Managers can anticipate receiving requests from staff for time off for this purpose. If such requests involve the use of earned leave, such as vacation credits or accrued lieu time, they should be treated in the normal fashion; i.e. the manager's decision should be based on the operational require- ments of the work unit. Requests for leave with pay which would normally be granted should not be denied simply on the basis of the purpose of the leave. However, requests for leave without pay, discretionary time off, adjustments in working hours, etc. for the purpose of participating in this protest should not be granted. In addition, managers should pay parti- cular attention to instances of staff reporting sick on Tuesday, to ensure that such cases do not involve concerted withdrawal of services. For example, it would be entirely appropriate for managers to exercise their delegated authority to demand medical certifi- cates, in accordancewith Article 51.10 of the Collec- tive Agreement. On September 20, the grievor, as President of the local Union in the Toronto Jail, met with the Superintendent, acting Deputy and in-coming Deputy Superintendents, to.discuss the operation of the institution on the following day. They came to an understanding that any staff not on the day shift could attend the demonstration, secondly that the day-shift staff would volun- tarily remain on duty. into the afternoon shift to cover any after- noon shift employees who were attending the rally and were late back to the institution, and thirdly that the griever would instruct his local executive to telephone all members of the unit to inform them of the understanding and to ensure that all employees were at work on September 21. i, -5- When the discussion on September 20 turned to the griever's personal position, he made it clear that he would not apply for a lpve f though it was almost assured that he could get a leave for the day, but would simply take the day off without authorization, because it was a matter of political principle for him. He had t? be at the rally, and refused to apply for a leave in order to attend. On September 21, the Ministry of Correctional Services faced a situation quite different from what had been feared. Twenty- two employees in Windsor left their jobs without leave in order to be in Toronto for the demonstration. Apart from them, in the whole province and a bargaining-unit population of some 4,000 employees, only the grievor was off work without authorization. At the Toronto Jail itself, management testified at our hearing 'that the attendance of the employees was simply astounding. No one had ever seen such a clean record--no absences, no sickness, not even one lateness! It does seem that the grievor deserves much credit for this performance at the Toronto Jail. He and his local executive had organized,the employees to ensure the smooth operation of the institution, while at the same time enabling significant participation at the rally by these employees. Following September 21, management in the government cervices continued to be concerned about the response of the unionized employees to the new legislation. This concern was -6- prompted in part by publicly posted notices of OPSEU (for example, Exhibit 10, issued over the signature of the Union President, Mr. S. O'Flynn, which suggested to staff representatives that membership groups may be interested in aggressive tactics, such as one-day strikes). This post-rally concern led to protracted discussions concerning the response to be made with respect to employees.who had been off the job without authorization on September 21. In the griever's case, on October 25, he was informed by letter that an enquiry would be held into the allegation that: !'You, by participating in a concerted withdrawal of service by a number of civil servants on September 21! 1982, by booking off, were absent without permission and proper authorization on that date during your prescribed hours of duty." I This enquiry was held on November 1, and was conducted by.Mr. John Main, Regional Director for Institutions in the Central Region. It is highly unusual for Mr. Main to conduct enquiries at the Toronto Jail. Normally, this is done by the Superintendent at the institution. However, the matter was considered to be of such a serious nature that Mr. Main was asked by his superiors to conduct the enquiry. Mr. Main recommended a five-day suspension for the griever's admitted absence from work without authorization. He made this recommendation to his superiors shortly after he conducted -7- the hearing. Thereafter, from time to time, he made enquiries of the Personnel Department to find out why no disciplinary action had yet been taken. In late-December, or early-January, he received the following letter of suspension for his signature. It was given to the grievor on January 11, 1983. On November 1, 1982 at.1100 hours a meeting was held with you in the Superintendent's Office at the Toronto Jai 1 regarding the allegation that: "You, by participating in a concerted withdrawal of service by a number of civil servants on September 21, 1982 by booking off, were absent without permission and proper authorization on that date during your prescribed hours of duty." It is my finding that the above allegation is fully substantiated. Your behaviour in this matter was highly irresponsible and showed a complete disregard for your responsibilities as an employee of this Ministry. An examination of your personnel file reveals that on December 11, 1979 you received an official reprimand for taking part in an illegal strike between December 3 to 5, 1979. You were warned that any further misconduct on your part! including insubordination, abandonment of post or participation in any other illegal work stoppage will result in more severe disciplinary action which may include dismissal. My first thoughts were to dismiss you from employment; however! I have decided that due to the personal hard- ship this could cause you and in the hopes that you have learned from this experience, I am directing that you be removed from employment without pay for five (5) working days at a time to be determined by the Super- intendent. Furthermore, you are to be considered as absent without leave on September 21, 1982 and consequently will forfeit eight hours pay for that day. -8- You are also advised that a copy of this letter will form part of your personnel file and if in the future any further misconduct on your part, including insubor- dination, abandonment of post, or participation in any other illegal work stoppage occurs, it will result in your dismissal. From the evidence at our hearing, this letter appears to have been drawn up by the Personnel Department. In any event, though his letter says it, Mr. Main testified clearly that it was never his view that the grievor should be dismissed. Yet, Mr. Crew, the Director of the Personnel Branch, testified that the managers involved wanted initially to discharge the employees who were off work without authorization, but the word from the top was to be lenient, in order not to provoke too great a response from the unions. We are satisfied that the reasons given in the letter of suspension were not entirely shared by the person whose s ignature appears on the letter. On January 10, 1985, the twenty-two Windsor employees, who had been off work without leave, received their letters of suspension. Their disciplinary penalties ranged from five to ten days off without pay. ON DOUBLE JEOPARDY The grievor argues initially that he had already been disciplined for the events of September 21. He suggests that this took place at a meeting between himself and the Superintendent of -9- the Toronto Jail, Mr. C. DeGrandis, on September 22. The grievor I testified that, at the meeting, he was informed.that he would lose his pay for September 21, and he was counselled verbally for his absence without leave. And Mr. DeGrandis closed by saying that this would be all and there would be no further reference in the griever's personnel file. Mr. DeGrandis testified that he ,did inform the grievor that he would lose his pay for the 21st, because the Ministry does not pay employees for days when they are not at work, unless it is a day on leave with pay. And he did say that there would be no further reference to this in the griever's personnel file---meaning no further reference to the administrative step of withdrawing the grievor's pay for'beptember 21. However, he testified that he did not say that there would be no disciplinary action. In our view, it is difficult to accept that the ~grievor felt the matter was over on September 22. He had taken the deli- berate step of being absent from work without authorization. He could have obtained leave, but he chose very carefully to be at the rally without authorization. He is acknowledged to be an experi- enced and able Union official. His manner before this Board con- firmed this. He was with Mr. DeGrandis alone on September 22, whereas it is required generally that there be a Union official present when discipline is handed out. Surely he must have expected more than the conversation he had with Mr. DeGrandis. - 10 - In sum, we accept the evidence of Mr. DeGrandis that there was no discipline handed out on September 22. The with- drawal of pay for September 21 was indeed an administrative matter, and cannot be construed as a disciplinary sanction. Furthermore, there may have been some discussion of the griever's conduct on September 21, but this cannot be taken as verbal counselling amounting to discipline. For these reasons, the suggestion of double jeopardy is rejected. ON THE PENALTY IMPOSED There is no doubt that the grievor was absent from work without authorization on September 21. This conduct is deserving of discipline. The issue is the appropriate penalty. From the letter of suspension, and given the evidence at our hearing, it appears that the Ministry (and we really do not know who was the individual responsible for the decision to impose the five-day suspension) based its decision on several factors: --that the grievor had participated in a concerted withdrawal of services /. --that his behavior was "highly irresponsible" and Z' showed a complete disregard for his responsibilities as an employee of the Ministry - 11 - --that he had received a written reprimand once before for taking part in an illegal strike in December 1979. It does not appear that all of these reasons were in fact the case. Firstly, the grievor clearly did not participate in a concerted withdrawal of service. Indeed, he took great pains to ensure that no one else within his persuasion would withdraw service. The action in Windsor had nothing whatsoever to do with the grievor. He had not planned it. He didn't know about it. Yet the evidence at our hearing from management witnesses, indicated that the disci- plinary action taken against the grievor was linked to the treatment meted out to the Windsor employees. Secondly, while it is true that the grievor took the deliberate step of being off work without authorization, his conduct cannot be characterized as "highly irresponsible", nor did he show a complete disregard for his responsibilities as an employee of the Ministry. The evidence'is clear that the grievor exercised his authority as local Union President, and spent time and effort, to ensure that the Toronto Jail would function efficiently on September 21. The evidence disclosed that these efforts were highly successful. The employees' attendance record at the jail was better on that day than on any other day within memory. The grjevor took a political and difficult position with respect to his own attendance at work on September 21, but he did not demon-, i. c - 12 - strate a disregard for the Ministry or the efficient operation of the institution in which he works. Thirdly, the griever's work record is very good. He has beenhighly commended in his annual appraisal reports.' The written reprimand on his record relates to an illegal strike by Ministry employees in December 1979, and is identical to the reprimand received by virtually all Ministry employees at that time. While we do not condone this previous conduct by the grievor, it is significant that this was not a problem peculiar to him, but rather reflects his participation in a work stoppage that involved virtually all of the employees in the bargaining unit at that time. In our view, the griever's conduct was less serious than was described in the letter of suspension. He did not participate in an illegal strike. He withdrew his own personal services, because of his own particular convictions, but at the same time took pains to ensure that the well-running of the institution would not be impaired. However, it cannot be ignored that the grievor chose deliberately to make a certain statement. Almost certainly, he could have had the day off with leave. He wanted to be off without authorization. There ought to be a disciplinary penalty which brings home to the grievor that this conduct is not acceptable. At the same time, we ought to consider the likelihood of a repetition of this conduct by the grievor. In considering this likelihood, i. ; - 13 - one must take into account first the probability that the Government will find it necessary to repeat the type of legislation involved on September 21, and then consider the likelihood that the grievor will do again what he did on that day. We think it is quite unlikely that the Government will find it necessary to repeat the measures taken in the legislation of September 21 (in particular, the re-opening of existing contracts). Hence, it does not appear very likely that the grievor will be faced with a similar situation, and therefore very unlikely that he will withdraw his services without authorization again. Bearing all of this in mind, we find that a one-day suspension without pay is an appropriate penalty in the circum- stances. This would be in addition to the pay lost for September 21 itself. The Board will retain jurisdiction in this. matter to determine the compensation due to the grievor, if the parties are unable to settle this themselves. Finally, the grievor requested acknowledgment in writing from the Ministry of the responsible manner in which he acted. We doubt that this Board has the authority to award such a remedy. In any event, we are not willing to do this here. It does seem an unusual request. If we were to grant the order requested, then it would seem that any employee (even if not the subject of disci- pline), who felt he or she deserved commendation for some act of i - 14 - service, could grieve to this Board requesting an order that the employer issue a written commendation. This would carry the grievance procedure far beyond what seems to be contemplated by the parties in their collective agreement, and by the Legislature in the legislation empowering this Board to hear and determine disputes between the parties. Done at London, Ontario, this day of& , 1983. "I ConcuP (see add.en%nn) L. Robbins, Member -w B. Lanigan, Member 7: 3130 7: 3240 9: 2300 1. 2. 3. 4. 5. 6. 7. 8, 8. 10. 11. 12. 13. 14. 15. - 15 - LIST OF EXHIBITS Grievance Form, 172/83 Poster i' Poster Poster Poster Poster Poster Poster Memorandum concerning September 21, Memorandum, September 28, 1982 Letter to grievor, October 25, 1982 Letter of suspension 1982 Letter of suspension to C.O. Sheila Smith Letter of commendation, 1982 =, 1981 16-20. Appraisal Report Forms 21. Reprimand of December 11, 1979 IN THE MATTER OF AN. ARBITRATION BETWEEN: THE MINISTRY OF CORRECTIONAL SERVICES (Crown in Right of Ontario) AND - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION IN THE MATTER OF THE GRIEVANCE OF KEVIN WILSON ADDE'NDgM - - I have reviewed the award oi the Chairman and am able to concur with the finding~that the disciplinary penalty was too severe and should be reduced. I also agree with the reasons given for the reduction in penalty. However, in my view a written warping:would have been a sufficient.penalty~.taking:all fadhors into account. If one considers the obvious bitterness which the pending wage restraint legislation generated amongst the employees, coupled with Mr. Wilson’s senior position i.n the Union, it does not. appear too unreasonable to me that he would need to take the day off fdr the demonstration. 1’ Although it iti true that he could'have sought permission from his immediate supervisor, there obviously was no guarantee that ‘\ . . . . . . . ..I2 .T>--i = 2 = permission would have been granted. This is especially evident when we consider the directive which Mr. Crew issued to his Managers. That directive contained the fdllowing sentence: “However, requests for leave without pay, discretionary time off, adjustments in working hours, etc. for the purpose of participating in this protest should not be granted." I" effect, the griever chose not to be a hytiocrite. In his own mind it was very clear and understandable that be would attend the demonstration. Asking for permission would imply a willingness to comply w.ith a refusal by his Supervisors. Given all of the above factors, the Ministry officials over- reacted in imposing a five day suspension on the griever. In my view the situation calls for a minimal disciplinary response, and no additional economic loss (over and above the day of the demon- stration itself) should be applied to the griever. Respectfully submitted Dated this & day of July, 1983 at'Toronto. Ontario . .