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HomeMy WebLinkAbout1987-0549.Kent.89-11-07IN THE MATTER OF AN ARBITRATION Under THE CROWN EAPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD Between: . Grievor - and - The Crown in Right of Ontario (Ministry of Correctional,Services) Employer Before: For the Grievor: For the Employer: Rearing: OPSEU (Kent) R.J. Roberts Vice-Chairperson L. Robbins Member M. O'Toole Member C. Wilkey Counsel Cornish & Associates Barristers & Solicitors J. Whibbs Regional Personnel Administrator Ministry of Correctional Services July 26, 1989 I 1 DECISION This case arises out of the denial of Union representation to the grievor during an investigation by a Shift Supervisor into allegations of professional misconduct made by an inmate against the grievor. For reasons whi'ch follow, the grievance is dismissed. At the outset of the hearing, the 'parties enterer? thk following agreed statement of facts: 1) 2) 3) 4) 5) 6) 7) 8) 9) Mr. J. Kent was employed as a Correctional Officer 2, at the Lindsay Jail at the time of his grievance. Mr. J. Kent placed an inmate on misconduct on February 20, 1987. The misconduct was heard by Mr. P. Campbell. Superintendent, Lindsay Jail, on February 24, 1987. Superintendent Campbell found the inn?ate not guilty $33 counselled the inmate regarding expectations of behaviar. During the misconduct hearing the inmate alleg?d unprofessional conduct by Mr. Kent. On February 24, 1987. Mr. D. Goden, Shift Supervisor. Lindsay Jail, was instructed to investigate th? allegations made by the inmate against Mr. Kent. Mr. D. Goden interviewed the inmate concerned and six staff members including Mr. Kent. During this interview with Mr. Goden, Mr. J. Kent requested a union representative to be present. Mr . Kent's request was denied by Mr. Goden. Mr. Goden completed his investigation and reported to the Superintendent on March 23, 1987 that the allegations made against Mr. Kent were unfounded. 10) Depending on the nature of the information gathered, a pre-discipline meeting potentially. could have been ..~ --~~~~.._ .-__~~-__~ z. 2.~ 2 convened by the Superintendent. 11) An employee may be assisted by a representative of his choice during the pre-discipline meeting. According to the evidence, there are three types of investigations in which the co-operation of Correctional Officers may be required: local investigations; investigations under Section 22 of the Ministry of Correctional Services Act (sec. 22 investigations): and police investigations. Local~investigations are the most frequent. Generally they are conducted by Supervisors under the direction Of the Superintendent of a facility. They involve minor occurrences within the facility and are of a fact finding nature. Once such an investigation is completed, the Supervisor summarizes his findings of fact.in a report to the Superintendent. If Iupon reviewing the report, the Superintendent decides that there may he cause for discipline, he gives adequate written notice to the Correctional Officer involved of a pre-disciplinary meeting. The notice will set forth the allegation and advise the officer of his or her right to Union representation. Discipline is not an inevitable consequence of such a meeting. The evidence made it clear that the purpose of the meeting is to give the officer an opportunity to respond to the allegation and provide the Sugerintendent his or her side of the story. The ~information so provided can have a dramatic impact upon the outcome. ? , I A Sect ion 22 investigation is reserved for more ser ,ious 3 matters, e.g., the death of an inmate, a major escape, a fire or a riot. This type of investigation is instituted under Section 22 of the Ministry of Correctional Services Act, which reads as follows: 22. The Minister may designate any person as an inspector to make such inspection or investigation as the Minister may require in connection with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection 01 investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation. R.S.O. 1980, c. 215, s.22 While Section 22 indicates that the Minister may designate "any" person as an Inspector, the evidence indicated that inpractice this appointment is limited to persons holding the position of Inspector in the Inspections and Investigation Branch of the Ministry. There appears to be a set procedure for instituting a Section 22 investigation. The Superintendent desiring such an investigation must contact his or her Regional Manager. If the latter agrees, the Inspections and Investigation Branch .of the Ministry is contacted and requested to send an Inspector. Thereafter, the appointment of the Inspector is confirmed in writing to the Assistant Deputy Minister. The Inspector then cc)mes to the institution and makes the investigation. 4 Ministry directives provide for limited access to Union representation during a s. 22 investigation. For the record, this limited access to representation is described in a Directive of the Ministry dated July 5, 1985, as follows: Henceforth, when an inspector is conducting an internal investigation and requires a statement from staff members, the following procedures will apply: 1. 2. 3. 4. 5. The inspector will show a copy of this directive to all bargaining unit members. The inspector will give the staff member the opportunity to provide a voluntary statement. If the staff member refuses, or does not wish to provide such a statement, and the inspector is of the view that a duty statement is necessary, then the inspector may insist that a statement be provided in accordance with Section 22. The inspector shall caution the employee and advise them: of the provisions of Section 22. The inspector shall permit lawyer or union representaciv? to be present at the Section 22 interview: a. if the employee is likely to be the subject of a disciplinary procedure (as opposed merely to being a witness); b. if the representative is readily available so as not to unreasonably delay the investigation: C. if the employee expresses a desire to have a representative present. It is understood, however. that: I. A representative must not be a person who was a participant or a witness to the incident being investigated. II. The representative attends as an observer. They may not coach, direct, or actively participate in the review process, but may raise concerns for the 5 record about the application of these procedures. Notwithstanding the above, the investigation may proceed at the discretion of the inspector. III. Where there is a representative present for the employee, the ministry reserves the right to have a management observer. Police investigations are reserved for circumstances in which criminal liability may result. These are not conducted by Ministry staff but rather, by the Ontario Provincial Police. It sometimes happens that a local investigation may be upgraded to a Section 22 investigation. This can occur, e.g., when what was thought to be a minor incident turns out to be more serious. At that point, the local investigation is terminated and a request is made for the'appointment of an Inspector from th+ Inspections and Investigations Branch. Another way in which a local investigation may become upgraded to a Section 22 investigation might occur when a Correctional Officer refuses to co-operate in a local investigation. The evidence made it very clear that the Ministry takes the position that part of the duty of a Correctional Officer is to give and clarify information in a local investigation. If a Correctional Officer refuses to do so, the investigation is liable to be upgraded to a Section 22 investigation so that the Inspector who is called in might impress upon the Correctional Officer that under the statute he could be dismissed if he obstructs matters “or withholds, destroys, conceals or refuses to furnish" the required information. 6 Turning to the facts of this case, the investigation was a local investigation. It was conducted by Mr. D. Goden, a Shift Supervisor, who was instructed to investigate an allegation of unprofessional conduct made by an inmate whom the grievor had placed upon a misconduct. Mr. Goden testified that he interviewed all of the witnesses that the inmate listed in his report and the grievor. There was no indication that Mr. Goden ever suggested that he had been designated an Inspector under Section 22 of the Ministry of Correctional Services~ Act. Despite a certain lack of co-operation on the part of the grievor -- he indicated that he, with some deliberation, was not a good witness and declined to sign Mr. Goden's notes of his responses -- the investigation was not upgraded to a more serious level. When the Superintendent reviewed Mr. Goden's report of his fact finding, he determined that the allegations against the grievor were unfounded. As a result no pre-disciplinary meeting was held. Nevertheless, the grievor filed a grievance because Mr. Goden denied his request for Union representation during the course of their interview. At the hearing, counsel for the Union raised the following three issues: 1. Was the investigation conducted by Mr. Goden nevertheless a de facto Section 22 investigation? 2. If not, was the investigation part of the pre- disciplinary process, so as to estop the Employer from departing from its prior practice in pre-disciplinary meetings of allowing Union representation?. 3. In any event, was Section 29(l) of the Crown Employees Collective Bargaining Act violated when the grievor was refused Union representation at his interview during the investigation? These issues will be the addressed seriatim hereinbelow: 1. THE INVESTIGATION AS A DE FACTO SECTION 22 INVESTIGATION There was some evidence of confusion on the part of Correctional Officers as to the distinction between local and Section 22 investigations. It seems from the evidence that this confusion may have sprung from their understanding, which was correct, that the Ministry expected their full co-operaLion in giving and clarifying information regardless of which type of investigation was involved. This expectation, however, did not derive from the nature of the investigation. It derived from the Ministry's view of the obligation of a Correctional Officer to assist in the administration of his or her institution. On the evidence, the distinction between a local and Section 22 investigation is two-fold: (1) a Section 22 investigation must be conducted by a person who is designated as an Inspector under Section 22 of the Act; and, (2) in practice, a Section 22 investigation is reserved for what are, in the opinion of the Superintendent and the Regional Manager, more serious matters. The investigation in the present case did not meet either of these conditions. There was no indication that,Mr. Goden ever was appointed by the Minister pursuant to Section 22 of the Ministry of Correctional Services Act. The matter under investigation, an allegation of professional misconduct on the part of the grievor, was relatively speaking, a minor matter. We cannot find that any de facto Section 22 investigation occurred here. Accordingly, the -- grievor was not entitled to the limited access to Union representation which is given to Correctional Officers who are the subjects of Section 22 investigations. 2. LOCAL INVESTIGATION AS PART OF THE PRE-DISCIPLINARY-MEETING PROCESS: It was common ground between the parties that, as a matter of practice. accused Correctional Officers are permitted full Union represenxtion in a pre-disciplinary meeting. It was submitted that a local investigation was. in fact, part of this pre- disciplinary process and, really, r.:.e distinction between them was too artificial to survive for purposes of Union representation. In this regard, Union counsel suggested that a Correctional Off< I-:' with an allegation against him is placed in jeopardy from t1.: .i moment be begins his interview in the local investigation. H* realizes, it was said, that he is expected to give and clarify information but at the same time his answers may place him in some : 9 jeopardy. Given the influence that the summary of this information may have upon the decision of the Superintendent whether to consider discipline, it was submitted, fairness required Union representation to be afforded in both steps of the process and not just the final one. Because management had already recognised this need for fairness by allowing Union representation at the pre- disciplinary meeting, counsel went on, the Employer was estopped from refusing to provide it at the investigation stage. We found this to be an interesting and innovative application of the doctrine of promissory estoppel; however, we find that there are too many obstacles in the way of accepting it. First, there is the fact that as a matter of practice, a distinction has always been made between a local investigation and a pre-disciplinary meeting for purposes of Union representation. There was no evidence of any previous Union objection to this practice. Accordingly, there may exist an equity estopping the Union from challenging the fairness or propriety of this distinction, at least in the present case. Secondly, there are in any event some circumstantial distinctions which we see as obstacles to full acceptance of Union counsel's characterization of the facts. As counsel for the Ministry pointed out, discipline is not contemplated when a local investigation is instituted. It is a fact finding exercise. As far as we could tell from the evidence, it does not even result in 10 a recommendation one way or the other. Moreover, and perhaps a related point, the investigation is not conducted by the decision maker. It is conducted by another person who, as we have already noted, does not even seem to have the authority to recommend discipline. Finally, while there is an expectation of co-operation on the part of even an accused Correctional Officer, it seems at least from the facts of this case that this expectation is not in practice enforced to the letter, so long as the officer does not flatly refuse to answer questions. When we consider these . distinctions, we are led to decline the invitation of the Union counsel to meld into a seamless whole the investigation and pre- disciplinary meeting stages of the process and thereby estop the Ministry from refusing Union representation at the investigation stage. 3. SECTION 29 (1) OF THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT: Section 29 (1) of the Crown Employees Collective Bargaining Act reads as follows: No person who is acting on behalf of the employer shall participate in or interfere with the selection, formation or administration of an employee organisation or the representation of employees by such an organisation, but nothing in this section shall be deemed to deprive the employer or any person acting on behalf of the employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence. . . This provision is in somewhat the same terms as Section 64 of the Ontario Labour Relations Act, which reads: No employer or employers' organization and no person action acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence. R.S.A. 1980, c. 228, s. 65. Both Section 29 (1) and Section 64, above, forbid, inter alia --I interference in "the representation of employees" by a union through the use of "coercion, intimidation, threats, promises or undue influence." It was this coincidence in language which led to the submission of still another interesting and innovative argument by Union counsel. It seems that in a 1984 decision, Ontario Nurses Association v. Windsor Western Hospital (Riverview Uni&),Nos. 2287-83 U; 2526-83- U (Burkett), the Ontario Labour Relations Board held that it was contrary to Section 64 for an employer to prevent meaningful Union representation at a meeting called by the employer to impose discipline. The Board said: 28. We now turn to the allegations against the Hospital. In essence it is alleged by the Association and the complainant that the Hospital interfered with the representation of an employee within the meaning of section 64 of the Act. We start by accepting that representation within the meaning of section 64 of the Act includes the representation of employees at the time that formal discipline is imposed and during the processing of any subsequent grievance. Although this Board --.. _ _-_. 12 has never before been required to articulate the exer+of the union's right in this regard, it flows naturally from the overriding purpose of the Act; that is. to redress the imbalance that exists when an individual employee is forced to deal with his employer in respect of his employment relations. The United States Supreme Court in upholding an interpretation of section I of the National Labour Relations Act, which gives employees .the statutory right to union assistance in a disciplinary proceeding, observed that sound policy reasons support the finding of an independent right to union representation at such a hearing. (See J. Weingarten Inc. and Retail Clerks, Local 455, (1973) 485 F. 2d 1135 S4 LRRM 2436 U.S.C.A. 5th circuit) certiorari aranted (1975) 43" U.S. 251 (Sup Ct.).) Section I of the National Labour Relations Act entitles employees "t 0 bargain collectively... and to enoage in other concerted activities for - _ the purpose-of collective bargaining or other mutual aid or protection". The U.S. Supreme Court in Weinaarten, supra ruled that: . . . . Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate and has recourse to the safeguards the Act provides to redress the perceived imbalance of economic power between labour and management. (see also Chaodelaine v. Emballaoe Domfar Ltee, 84 CLLC 14,013 (Que. L.C.) for the only Canadian authority in point, in which the Quebec Labour Court held that an employee was entitled to union representation at a disciplinary interview under the "freedom of association" article of the Quebec Labour Code). 29. The whole scheme of our Act is to reverse the imbalance that exists between individual employee and employer. The Act provides for the certification of trade unions to act as collective representative for all of those falling within a bargaining unit found to be appropriate for collective bargaining. It is clear on a reading of the Act as a whole that the right to collective representation encompasses not only the negotiation of the collective agreement but the representation of individual employees in pursuit of or in protection of their rights under the collective agreement. It follows that just as under the American and Quebec statutes, which are designed to serve essentially the same purpose, the right to collective representation under the Labour Relations Act (embodied in the right accorded to all persons under section 3 of the Act to join a trade union and participate in its lawful activities and the prohibition in section 64 of the Act against interference with the representation of employees by a trade union) extends to 13 include union representation at a meeting called by the employer to charge an employee with misconduct or to impose discipline. While the statute does not give an employee the right to choose his union representative, it does protect the right to representation and prohibits employer interference with this right. It is not for the employer to decide who will be the employee's representative at a discipline meeting or to put impediments in place that cannot be reasonably justified. Id. at paragraphs 28 & 29. As can be seen, in reaching this conclusion the Board referred to a decision of the Supreme Court of the United States, Na v. Weinaarten Inc., 420 U.S. 251, 262 (1974). Union counsel stressed that in Weinaarten, the Supreme Court of the United States concluded that it was a breach of Section I of the National Labour Relations Act for an employer to refuse an employee union representation at an investigatory interview "which he reasonably believes may result in the imposition of discipline." This conclusion was reached, it was submitted, because the employer's refusal perpetuated "the perceived imbalance of economic power between labour and management" which the Act was designed to eliminate. Since the Ontario Labour Relations Act, and in particular Section 64 thereof, was designed to serve essentially the same purpose as the American statute, it was submitted, the Ontario Labour Relations Act likewise required unionrepresentation at investigatory meetings. In light of this, the conclusion was inescapable, it was submitted, that s. 29 (1) of the Crown Employees Collective Bargaining Act, which embodied the essence of this same right for Crown employees, required union representation 14 at investigatory meetings. This was a forceful argument: however, we have decided to leave for perhaps another day the making of what would have been a new rule of the Grievance Settlement Board with potential implications for the Labour Relations Board. We say this because in the Windsor Western case, w, the Board took pains to issue a very narrow ruling, much narrower than that upheld by the Supreme Court of the United States in Weinqarten; Whereas .Weinqarten I upheld a ruling of the National Labour Relations Board which extended union representation to an employee at "an investigatory interview which he reasonably believes may result in the imposition of discipline", the Board in Windsor Western narrowly ruled that the right to union representation included "union representation at a meeting called by the employer to charge an employee with misconduct or to impose discipline." Unlike its counterpart in the United States, the Board did not extend the right of union representation to meetings of a fact-finding or investigatory nature. Moreover, we were unable to find in the authorities presented to us by counsel any decision of the Board which broadened this right of union representation beyond the narrow confines specified in Windsor Western. In fact, the only other case from the Board to which we were referred, Canadian Paperworkers' Union, Local 304 V. Sunworthy Wall Coverings (19861, Case #1328/85-U (Tacon), evinced an intention not to expand the ratio of Windsor Western beyond the context of disciplinary meetings. We are not inclined to make an extension of the jurisprudence of the Labour Relations Board which the Board itself has not made and then proceed to apply it to our own statute. That, it seems to us, would be too great a leap in jurisprudence for the facts of the present case. We are reminded that here we are dealing wizh a simple fact-finding investigation. Thereafter, discipline was neither considered nor imposed. Accordingly, we decline to conclude that the right of union representation provided under Section 64 of the Labour Relations Act and Section 29 (1) of the Crown Employees Collective Bargaining Act was breached in the circumstances of the present case. 4. CONCLUSIONS: The grievance is dismissed. DATED at London, Ontario, 1989. 16 , . ADDENDUM I concur with the Award in this matter. Nevertheless, I can certainly appreciate the grievor's desire for Union representation in such investigatory meetings. The Correctional Officer, by the nature of his position, is frequently subject to a variety of allegations of misconduct, some of which may be justified, others not, as was the case here. Yet once an investigation is launched, the Correctional Officer who is the focus may be in a tenuous position, in that the spectre of discipline is hanging over his head. Statements made at such an investigation could conceivably be used against the Correctional Officer later. . In my view, it would increase the confidence of the Correctional Officers in the system if an expanded role were provided for Union representation even at a so-called "fact- finding" meeting. I agree with the statements in Windsor Western e (supra) and in J. (supra) Hos ita that there is a great imbalance between the Employer and an individual employee, especially in the context of disciplinary proceedings. A wide right to Union representation in such meetings with Management is an important means of redressing that imbalance. Dated at Toronto, Ontario the 7th day of November, 1989 LARRY ROBtiNS