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HomeMy WebLinkAbout1983-0323.Burns.84-05-09IN THE MATTER OF AN ARBITRATION ,IJnder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD s Between: OPSEU (P. Burns) Grievor- -- And - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: R.J. Roberts E. NcVey E.R. O'Helly Vice Chairman hiember Member For the Grievor: P.A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: J.F. Benedict Nanager, Staff Relations Ninistry of Correctional Services Hearings: November 29, 1953 January 31, 19S4 Xarch 3, 1954 .DECISION The events .involved in this arbitration took place .,in the 2 C Corridor of the Jail. This Corridor takes up approximately l/3 of the area on the second floor of the facility. It is essentially divided in half by a double row of cells running down the center of the Corridor. One side or "range" of the Corridor is known as 2 C North; the other, as 2 C South. This is a discipline case which falls to be decided upon: a narrow issue. That issue is whether, on all of the evidence, the Employer met its burden on a case of insubordination against the grievor. For reasons which follow, we conclude that on the evidence, a case of insubordination was not made out and as a consequence the . grievance'must be allowed. For approximately the past 8 years the grievor has been ai Correctional Officer at the Toronto Jail. This is a maximum security institution which is adapted tom house prisoners who have yet to be sentenced,on the charges against them.' For this reason, the Jail houses a wide variety of offenders, some of. whom may be dangerous, for relatively short periods of time. The separation between the two sides of the Corridor is virtually complete. There are no means by which prisoners on one side might communicate with those on the other. In the areas immediately in front of each row of 'cells there are "Dayrooms" where the prisoners are allowed to gather 'in the daytime. These Dayrooms are barred off from a "guard walki" which runs around the perimeter of the Corridor. One Sally Port on each side' or "range" constitutes the sole access that prisoners have to the'.guard walk. Each Sally - Port resembles a small 'room, with a door opening into the Dayroom on the one side, a~nd, on the other, another door opening into the guard walk. Normally, both ares locked and can only be opened by the Correctional Officers who happen-to be on duty. On February 28th, 1983, the.grievor and his p.artne'r,~ Mr. ,, Wilders, were assigned to supervise the 2C Corridor on the.'day shift;, It was arranged'between them:that.the griever would.take -care of 2C~ South and Mr. ~Wilders would take care of 2C North. .This meant that the 'grievor would sit at the guard's'desk, which was located immediately outside of the' Sally Port for 2C South, while'his partner, -Mr. Wilders, would patrol ‘<in that portion of the guard walk which surrounded the Dayroom on 2C North. It was not unusual for a team of Correctional- Officers to divide up their duties in this fashion, although, it seems, both still remained responsible for the entire . Corridor. Around 7:00 A.M., when the grievor and Mr. Wilders opened the- cells, Mr. G. Borsi, an inmate, brought out of -4- his cell'all of his property, walked with it into the Sally. Port- and closed the door so that it locked behind him. (The door between the Sally Port and Dayroom apparently was opened in': the morning to allow inmates to enter individually in order to shave with a razor, which was placed therein.) According to the grievor, "that is when [Mr. Borsi] asked me for a Corridor change. He said' that he was not safe in 2c, that he was being threatened. I.told him -- I knew Borsi was a troublemaker -- that he'd'have to wait. I wasn't going to make any 'hasty' decisions. _.. I asked him what the problem was, who was threateni.nghim. He did not answer, s he refused to be a 'rat'." The griever further testified that he kept Mr. Borsi standing in the Sally Port until around 7:30 to 7:35 a.m. when his supervisor, Mr. Stipchich,,was due to come around. During this time, the grievor testified, "I had' a chance to observe [Mr. Borsi]. He showed fear, anxiety, he kept asking for a Corridor change. Some other inmates made remarks ‘:‘,.,. that upset him, like 'Are you cracking for a Corridor. change?', and 'What's the matter, Borsi?"' The grievor testified that he waited this long to make a decision because he wondered whether Mr. Borsi was "conning" him. It apparently is a not uncommon experience in the correctional system for inmates who are known as troublemakers and ring leaders to attempt to demonstrate to others their skill at manipulating their wa) from one area or assignment to another. If they are able to do this, they undermine the r- -9- authority and credibility of the Correctional Officers who are supposed to be in charge and correspondingly:, enhance find out, particularly if an inmate doesn't'like the fellow). I talked to Ron Rutticombe, who was a bit of a heavy on '.: the 2 C South side and was being shipped out. He told me that he didn't like Borsi and Borsi probably would be taken care of. He Rutticombe wou ,l That concerned Borsi st i: of 2 c. asked to have Borsi left in 2 C South. d be the front man if anything went down. me. Inmate assault is a constant problem. their own authority and influence over their inmate-followers. :; The grievor knew that Mr. Borsi was such an inmate. He also knew that until the day in question, Mr. Borsi had been housed in a cell on the North side of this Corridor, and had acquired considerable influence over the inmate population on that side. It seems that Mr. Borsi had a "tough". appearance and was able to manipulate easily the inmates on that side, most of whom were young and fearful of hi&l. Still, because Mr. Borsi was behaving unusual and seemed afraid of something, the griever was unsure as to whether he was 'being subjected to just another "con" job.. He said, "I asked another inmate (this is. the best way to 11 had to be protected. I wanted to get him out I decided that I would talk to my Supervisor." r -be . +t about 7~35 a.m., the grievor's supervisor, Mr. J. Stipohich arrived. The grievor testified, "I' told ‘him that I believed that Borsi was unsafe and should be -moved out of y.2 C to another area. Mr. Stipchich suggested I move him..to 2 C North. I said, no, that was unwise, he'd been causing trouble over there which repeatedly was logged [in the log book]. (I could have done this myself without any authorization from supervision if I wanted to.) . . . I asked to move Borsi right out of 2 C. Mr. Stipchich went to the phone and called [Mr. R. Smythe, the Shift Supervisor] and then came back and .told me that~ Borsi could not move out of 2 -Cc. The Jail was full. There .was no room for him anywh'ere. I noted in thelog book that Mr. Stipchich'refused a Corridor change for Borsi." : ..: This left the grievor with a.dilemma which, he testified, he discussed with his partner, Mr. Wilders. He said, "Mr. Wilders was present at the time. He was aware of the situation with the inmate. Mr. Wilders and I discused our *.: ,'.two options. We could leave [Borsi] to get assaulted or put him back in 2 C North. A half an hour after Mr. Stipchich left we moved him [back to 2 C North]. We counselled him. He had to say that he'd behave himself. After he did, we moved him back to 2 C North. . . . At 8:lO a.m. I entered the above actions in the log book. For the remainder of our shift Mr. Borsi behaved himself. He did not cause us any problems." The griever further testified that-at :9:00 A.M:, when Mr. Stipchich again came around on his regular ipafrol, he advised the latter of the decision 'that~ he had made. He testified, "Mr. Stipchich asked me where Borsi was. I told him I moved him to 2 C North. He accepted that. . . . I told him I'd still like to see Horsi in another Corridor. He said that Mr. Smythe had decided the matter, but he'd check. He did not ,criticize my action in moving Borsi to the North side:" The grievor testified to one f.urther conversation with - Mr. Stipchich on that morning,. He said, "At 11:40 tom 11:45 A.M. I asked .Mr. Stipchich again. He said the problem is between you and Mr. Dowhey [another Correctional Officer on a different shift]. He's the one who moved Borsi to the South side and you are the one who moved Borsi back-. The problem was between me and Mr. Dowhey." When Mr. Dowhey reported for work on the 'afternoon shift that day, he, indeed, was upset. Just the previous evening he had transferred Borsi from the North side to the South side and. now there Borsi was, back again on the North side. He testified, "When I cane on duty I noticed Borsi was not on the South side. I asked Mr. ~Burns [the grievor]. Mr. Burns stated that . . . Mr. Stipchich okayed Horsi going, back to the North side. . . . I more or less -a- had to go along with the situation. But I 'was quite annoyed. There was trouble again that evening on the .iqorth side. I decided to write a letter. Why move him backs when the ~'previous afternoon shift had moved him to the .South side and':lt was approved?" That same shift, Mr. Dowhey addressed a letter to Mr. C. DeGrandis, the .Superintendent of thee Jail, in which he complained about Mr. Borsi's return to the North side. This letter read, in pertinent part, as follows: Sir: On Feb. 27/83, I submitted a letter to you outlining the problems on 2C North involving i/n Borsi. I recommended that he be transferred to the, S/S of 2C which was done by the approval of shift Supervisors Mr. Smith and Mr. McMillan. After this was done, the N/S was very quiet for' the rest of the night. When asked by the i/n's of the N/S where B,orsi was being placed, I informed that he was moved and there would be more i/n’s .being removed‘ everyday until the N/S obtained harmony. Returning to work today (Feb. 28/83) I. was more than surprised to find. that Borsi was again in the N/S of 2c. After writing a 3 page report yesterday advising management that unnecessary problems would arise with Borsi being in the N/S my advice was ignored. During todays' shift the N/S was again unruly, and I have lost "face" and authority in this Corridor, the i/n's now knowing that my moving Borsi was "over ridden" by the day shift and therefore have no say in the running of the corridor. At 18.53 I was informed by the S/S that Borsi has arranged 2 S/S inmates to be attacked during the exercise yard on Tuesday. At 21.15 while locking the cells on S/S with Mr. Greer covering me there were numerous cups thrown through the sally port on the N/S of the range. I stated in my first report that Borsi was running the N/S, as to his admission and it now seems. that he, again is in power, not the officers of this jail. While Mr. Borsi might have been quiet on the day shift, it seemed that he "flexed" his muscles more than once, on the afternoon shift, perhaps to deepen the apparent erosion of Mr. Dowhey's authority. Upon receiving the above letter, Mr. DeGrandis ordered an 'investigation. The grievor ,submitted a brief report which goincided in its essential respects with his testimony at the hearing. Mr. Stipchich and Mr. Smythe, however; submitted reports which varied considerably in their factual recitations from that of the grievor. 'Mr. Wilders was not asked to submit a report. The report submitted by Mr. Stipchich read, part, as follows: v.. Sir, in pertinent On Monday, Feb. 28/83 on the 0700-1500 hr. shift I was the floor supervisor on duty. At approx. 0740 a.m. when I arrived in 2C i/m Borsi was in the sally port on the South side. When I asked Mr. Burns who was on duty in this area 1. asked him why i/n Borsi was in. the sally port. Mr. Burns said that the inmate was threatened by other inmates and he wanted back on the North side where he was moved from the previous night. I spoke with i/m Borsi and asked him what the problem was. Inmate Borsi replied that he was threatened by other inmates in 2C South and that he wanted to go back to the North side. I consulted with Mr. Smith and the decision was made since he could not or would not identify the inmates he was to stay' on the South side and Mr. Burns was informed by myself not to move the inmate. Respectfully submitted, J. Stipchich OM15 There was no mention of any request by Mr. Borsi for a Corridor change; all that was mentioned was a request by Mr. Borsi to return to 2C North. The le,tter concluded with a statement to the effect that the grievor was informed by Mr. Stipchich 'that pursuant to instructions from Mr. Smythe, Mr. Bor.si was to stay in 2C South. The report from Mr. Smythe~ read, in pertinent part, as follows: On Monday. 20th~ February 1983 I received a telephone call from Mr. Stipchich A/OMl5 that inmate Borsi was on 2C South and requesting a range change. I had observed a report from Mr. MacMillan OM15 dated 21th ult. earlier stating why Borsi had been moved from the north side to the south side. I informed -Mr. Stipchich that Borsi was to stay where he was and not to be moved. It was a requirement that Borsi was to be in a position where he was almost under c.onstant observation. I had no doubt that Mr. Stipchich had understood my. instructions that Borsi had to stay put. R. Smythe The report indicated that Mr. Smythe had told Mr. Stipchich. that Borsi was to "stay put" in 2~ South and that there was no doubt that Mr. Stipchich understood Mr. Smythe's instructions . . . . ) On March 10, 1983, Mr. DeGrandis held 'a disciplinary meeting in which he reviewed the above reports' and 'heard submissions from the grievor and a representative, from the Union. On March 14, Mr.' DeGrandis issued to the grievor the,(following letter: March 14, 1983. Mr. P. Burns, Correctional Officer.2, Toronto Jail. Dear Mr. Burns: Re: My,Letter.of March 7,~1983 Disobey an Order or Instruction of~'a ~Superior.,Officer w February 28, 1983 With reference to the above noted letter, a meeting was held in the boardroom at 1730 hours on Thursday, March 10, 1983. YOU attended 'that meeting in the presence of your representative,~ Mr. .Mike Campbell, OPSEU Staff Representative, and also in attendance were Mr. I. Leithead, Senior Assistant Superintendent, Mr. T. Bolton, Assistant Superintendent, and myself. I find that the allegation in this situation was to my satisfaction substantiated, i.e., you did in fact receive an instruction from Mr. J. Stipchich, an Acting OM-15 on that shift, and through him from Mr. R. Smythe, the senior OM-15 on that shift vis-a-vis your request to move inmate Borsi from the Corridor that he was located in, to some other location. I find the instruction or order given to and indirectly through him by Mr. yo;my~~e MtHs S;ip;zH;i inmate Borsi where he was. The best coifirmation that this order or .instruction was given is your own log book notation of February 28, 1983, at 0740 hours, and I quote: "Inmate Borsi at grille wanting. Corridor change to stay where he is per Lieutenant Smythe." Signed *Burns". In your defence, YOU attempted to somehow diminish your understanding of that instruction or order, but I find the above quoted log book notation to indicate to me that that order was clear and concise and was understood by yourself. I was not impressed by yourself and your representative that, there were circumstances extenuating which allowed you to take: th,e action that you did, and still be in compliance with t,he order. 'you received. I find all.the reports submitted, yours included, to verify the fact that you did" not obey the instruction. '~ In reviewing your file, I find that there has been no such similar situation in your employment history at this institution and, therefore, I am persuaded to ameliorate my own tendency to deal very firmly with such failure to carry out an prder or instruction from a supervisor. I am hereby suspending you from pay for a period of one day. This su~spension will. be at then discretion. of Mr; I. Leithead, Senior Assistant Superintendent. I must further caution you that any future failure,s to comply fully with an instruction or an order from a supervisory officer cannot and will not be dealt .with in was lenient a manner as this situation. Yours truly, e C.C. DeGranhis, Superintendent. The grievor was suspended for one day for disobeying an order of a supervisor. The grievor thereupon filed the grievance leading to the present proceeding. At the hearing, Mr. DeGrandis gave evidence tending to indicate that his understanding was that the Correctional Officers who were in charge of a Corridor were required to obtain permission from supervision before'moving an inmate from one side of the Corridor to another. The great weight of the evidence, however, indicated that this understanding was not at all in accordance with long-standing practise in the Jail. It was unequivocally demonstrated in the evidence that on their own authority, Correctional Officers routinely moved inmates from one side of a Corridor to another. There was no necessity for permission to be 'sought _ from supervision. Permission solely was required, to -move an inmate from one Corridor to another location. That this was so was not contested in the submissions of the Employer atthe end of the hearing. The great weight of the evidence also established that r Correctional Officers at the Jail did not regard a move from one side to another as a Corridor change. It will be reca.lled that in his letter of discipline Mr. DeGrandis took as confirming that the order from Mr. Stipchich "was clear-and concise: and was understood by [the griever]" the following log book notation by the grievor: 0740: Inmate Borsi at grill ~wanting Corridor change -- to stay where he is per Lt. Smythe. . . . In light of the established fact that a change in Corridor was regarded as different from a change in side, this log ..,~ book entry cannot be viewed as any acknowledgement, by the grievor that he had clearly and concisely been instructed that Mr. Borsi was to remain in 2C South. The question whether Mr. Stipchich conveyed to the griever a clear order to keep Mr. Borsi in 2C South must be determined upon an evaluation of the evidence at the hearing. Certainly, Mr. Stipchich's report was to this effect. So {ias his testimony. He said that at 7:30 a.m. - 14 - he was told by the grievor "that Borsi wanted to speak to -' me. He wanted to move from the side he was 'on to the other side -- from South' to North of the 2C Corridor.' 'I asked Borsi why. He said he was being threatened by other inmates. I asked who.' He would not say. With that, I called Mr. Smythe and told him. The decision was reached that being that Borsi would not say who wasthreatening him, he stay, where he was. . . . I explained to Mr. Burns [the grievor] that Borsi was :to stay ~where he is. Mr.~ Burns did, log it in the log book, that the inmate .is to stay where he is as per Lt. Smythe. As far as I was concerned the issue was closed. The inmate stayed where he was." Mr. Stipchich went on to disagree with the griever's assessment of whether Mr. Borsi was in fear. 'He said, "When I spoke to him he acted quite normal. He did not seem to be shaking or in fear of his life. He would not reveal who was allegedly threatening him. [The grievor] was standing right beside us when we were talking,, if I'm not mistaken. . . . There was no indication that he was interfering with the Corridor routine. He was in the Sally Port by himself.". Mr. Stipchick went on to testify that in his later rounds he never again spoke to the griever about Mr. Borsi. He said that when he was in the Corridor again at 9:07 a.m., "Mr. Burns did not say anything to me about Borsi or moving him. No sir." He likewise could not recall discussing a.m. entry'in the log book by the grievor that !'Mr. Stipchich . . . acting to review i/m Borsi's status in ~2C" Mr. Stipchich i stated, "I don't know .why this entry is there. At 1l:OO a.m. I was nowhere near the area. Nobody spoke to me in regards to it. I never received any such phone call." Mr. Stipchich also denied that' on his later- rounds he must have realized that Mr. Borsi no longer was in 2C South. He said, "If Mr. Burns did not tell me that he had moved Borsi, as far as I was. concerned; he stayed where .he was unless I spotted him face-to-face. But the Corridor is that crowded that this does not happen." The only other testimony to shed any light upon what might have. been conveyed to the grievor by Mr. Stipchich was that of the griever's partner on the day in .question, Mr. Wilders. (It will be recalled that no report from Mr. Wilders was before Mr. DeGrandis at the time he conducted '.: his investigation.) He said, "Borsi came up to the Sally Port with all his belongings. He said he wanted out of the Corridor. He feared for his well-being. He was really nervous and up-tight. We asked why. He said he was going to get hurt. We asked who and said we'd give him protective custody. He refused, saying he was not a 'rat'. He was very nervous, he had all of his personal belongings with - him. That meant that he meant to come out and not return. I felt he was scared of being injured in that area.'!:. 1. As to the precise instruction that was conveyed by Mr. Stipchich to the grievor, Mr. Wilders stated, "Mr. Stipchich came up. We explained the situation to him. Mr. Stipchich asked Borsi to 'rat'. Borsi refused. Mr. Stipchich then phoned Mr. Smythe, the Shift I.C. When he came. back, he said'that Borsi could not be moved out of 2C unless he said who was threatening him and then he'd be moved ,to pro_tective custody." On cross-examination, Mr. Wilders added that at the time this instruction was issued to the griever, "We were all' three standing together. Mr. Stipchich, myself and Mr'. Burns. Mr. Stipchick told Burns that he could not move Borsi out of the Corridor other than to protective custody. That's what was said to the best of my knowledge. Yes." . . . . When asked what his understanding was after this~ meeting with Mr. '. Stipchich, Mr. Wilders stated, "We had instructions from Mr. Stipchich not to move Borsi out of 2C. There was no disobedience in moving him to 2C North. No permission was necessary to move an inmate from one side to another. . . . When Borsi was moved we logged it in the log book. That's about it. . . . Mr. Stipchich should have been aware Borsi r /- , was moved to 2C North when he looked over the entries on his inspection tours. Be is supposed to do that." -1 In the light of the above record we are unable to conclude, on a balance of probabilities, that the grievor was clearly instructed not to move Mr. Borsi out of 2C South. As illustrated, there were significant discrepancies between the versions of events related by the only witnesses to the order in question, i.e., the griever, Mr. Stipchich, and Mr. Wilders. The testimony of the latter, however, tended to corroborate the griever's recollection that after he spoke with Mr. Stipchich he retained the impression that he was at liberty to move Mr. Borsi to 2C North. In the face of this, we must conclude that even though Mr. Stipchich might have intended to convey an order that Mr. Borsi was not to be moved from 2C South, that order was not clearly communicated to the griever. Because clear communication of an order to the employee is an essential ingredient of a charge of insurbordination, we find that the Employer '..'. did not sustain its burden on the issue of cause for discipline. The grievance is allowed. All reference to the discipline herein must be deleted from the griever's record and the grievor must be reimbursed for all compensation lost as a result of the imposition of the one day suspension. implementation of the terms of this Award by the parties. ' DATED AT London, Ontario this 9th day of May, 1984.