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HomeMy WebLinkAbout2011-0560.Moss.14-06-10 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2011-0560, 2011-3978 UNION#2010-0368-0167, 2012-0368-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Moss) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER George Parris Ministry of Government Services Legal Services Branch Counsel HEARING December 13 and 19, 2013 - 2 - Decision [1] Clark Moss is a Correctional Officer at Central East Correctional Centre. He filed two grievances that arose during his tenure as local union president. The first alleged that the employer has disciplined him “unjustly, unfairly and by contravening processes”. By way of remedy he requested a written apology, and compensatory damages. [2] The second grievance alleged that the Employer violated the Collective Agreement and various Ministerial polices when it failed to inform him of his status of “respondent” in a WDHP investigation. He requested vacation time be credited to his vacation bank as a remedy. [3] The factual backdrop for the first grievance can be understood from two letters received by the grievor. On June 14, 2010 Mr. Moss received the following letter from Dwight Goden, Deputy Superintendent of Administration: This letter is an inquiry to the status of a report requested by the undersigned on May 25, 2010 providing names of staff you alleged to have seen smoking in the staff cafeteria courtyard. The expectation was that I would receive your report by May 28, 2010. I can only reiterate the need for timely investigation/fact findings of the incident to deal with it appropriately. I further understand that since you received my letter you had a discussion with the Superintendent. My expectations have not changed. You have been requested to complete a report. This second request is a direct order to complete and submit the report by June 17, 2010 to the undersigned. Thanking you in advance for your cooperation. [4] On July 6, 2010 Mr. Goden sent the grievor another letter which stated: On Tuesday May 25, 2010 you attended an allegation meeting as Union representative for [another Correctional Officer]. During the meeting you stated you saw four staff members and one manager smoking in the courtyard adjacent to the staff lunchroom. At the time I requested you provide me a report and the same date followed up the request in writing. The letter stated clearly that I expected the report by May 28, 2010. Again I wrote you on June 14, 2010 and requested the report by June 17, 2010. Further in the letter I acknowledged your discussion with the Superintendent, Mr. Polya, on the subject matter. Mr. Polya has told me he also directed you verbally to write the report. Messages left in your office to inquire as to the status of the report have gone unanswered. Please be advised that a meeting has been scheduled for Wednesday July 28, 2010 at 1000 hours in my office to allow you to respond to the following allegation: - 3 - • Breach of section 2.2 titled Employee Discharge of Duties page 2 of 2: “Make a written report of any unusual or significant occurrence or observation made during a tour of duty or when directed by the Superintendent or his designate.” (Also reiterated in Adult Institution Policies titled Discharge of Duties, item (i) page 2 of 6) • Beach of Adult Institution Policies titled “Staff Conduct”, Item (d): Refusal to accept work, shifts, overtime, duty location, assigned responsibilities or the instructions of a manger.” The impact of your informed decision not to provide a report in a timely manner has resulted in the inability for a timely investigation /fact finding of the incident (Violation of the Ontario Smoke Free Act) and further demonstrates an act of insubordination. At this allegation meeting you will be given the opportunity to respond accordingly to the allegations and provide us with factual information and mitigating factors. Your attendance at this meeting is required. However, if you do not attend, I will make the decision based on the information currently available to me. As a result of this meeting, you may be subject to disciplinary action. You may also have Union representation at this meeting. It will be your responsibility to make arrangements for the attendance of your representative. [5] Most of the relevant facts in these matters are not in dispute. Mr. Clark, in his capacity as Union President attended at an allegation meeting with a Correctional Officer who was alleged to have been smoking within the institution. During the course of his representation of that union member, Mr. Moss told Mr. Goden, who was in attendance for the Employer, that earlier that very day he had been in the staff lunch room and had seen both Correctional Officers and Managers smoking in the server. Mr. Moss testified that this comment was made to underscore the point that his member could be forgiven her view that she was not violating policy by engaging in activity that was institutionally ubiquitous. Mr. Goden told Mr. Moss that he wanted a report naming those seen smoking in the server. Mr. Moss did not comply because, according to his evidence, he did not think it was appropriate that he should be listing the names of fellow bargaining unit members who were smoking. Such information would have brought about further allegation meetings and possible discipline for his members. He was of the view that the grievance meeting was confidential and for the sole purpose of discussing the grievance at issue. He felt there was a conflict of interest for him between his duties as Union president and as Correctional Officer. Mr. Moss did not name the offending Correctional Officers during that meeting nor did he write a later report. [6] The grievor met with the Superintendent after the grievance meeting and raised his concerns about being asked to name fellow bargaining unit members who had been - 4 - smoking, particularly given that the discussion was held during the course of a labour relations meeting. According to Mr. Moss the conversation focused on the problems of smoking in the workplace but he left thinking that there was no further need for a report. [7] When he received the first letter from Mr. Goden he again spoke to Mr. Polya who told him to supply only a list of names of the managers that he knew to violate the no smoking policy to Mr. Goden. Mr. Moss again did not comply because he thought this would put him “between a rock and hard place”. He thought that providing this information about various managers would have done labour relations harm and could have caused him to be vulnerable to managerial abuse. [8] According to his evidence, Mr. Moss was “taken aback” by the language of the letter regarding an upcoming allegation meeting because it appeared to have already determined the matter. He particularly focused on the phrase “further demonstrates an act of insubordination.” In his view, he had already been found to have violated policy. He again went to the Superintendent to discuss the matter. He expressed his concerns and frustration but was advised to attend the meeting. He told Mr. Polya he would not attend but was informed that failure to do so might itself lead to discipline. As a result he attended at the appointed time only to find that Mr. Goden was not at work on that day. The meeting was never re-scheduled but the July 26, 2010 letter was never formally withdrawn. [9] Mr. Moss viewed the July 26, 2010 letter as discipline and feared that it will form the base for progressive discipline. He believes that he has been disciplined as the direct result of exercising his duties as Union President. He thought the Employer was attempting to intimidate him and the entire bargaining unit with tactics such as this. He testified that he must be able to engage in private conversation that will not have the usual type of employee consequences while he is acting as Union President. [10] In his cross-examination regarding this grievance Mr. Moss acknowledged that he was never told that he had been disciplined as the result of this situation. Further, the letter has never been raised or referred to since the cancelled allegation meeting by the Employer. Mr. Moss conceded that the issue of smoking in the workplace is a “big deal.” Indeed, he agreed that it was one of the top five issues that management was attempting to deal with as the result of ongoing litigation between the parties. The Union has taken a strong stand that the Employer has not made every effort to comply with its own policies and legislation regarding smoking in the workplace. He testified that in an effort to assist with compliance he made a number of suggestions including the installation of cameras in the server. [11] Regarding the second grievance Mr. Moss received a letter from Craig Hillen, Deputy Superintendent of Operations on February 20, 2012 which said: - 5 - On January 11, 2012 you were named as a respondent in a complaint under the Workplace Discrimination and Harassment Prevention (WDSP) Policy. The complainant, raised allegations of a poisoned work environment at the Central East Correctional Centre. I have consulted with the ministry’s Organizational Effectiveness Division and determined that the allegations do not fall within the scope and application of the WDHP Policy. Based on the above, the ministry will not be taking further action on this matter and this complaint will be closed. Let me assure you that the Ministry of Community Safety and Correctional Services is committed to fostering and sustaining an inclusive, diverse, equitable and accessible workplace that is respectful and free from discrimination and harassment. Thank you for your co-operation. [12] Mr. Moss testified that the first he was aware of this complaint was when he received this letter sometime during the week after it was written. He immediately became concerned that there were allegations that had been made seven weeks previously that he had not been told of. He was particularly troubled that the complainant, an Operational Manager, had been allowed to supervise him in the interim. He was of the view that he could have been placed at risk both physically and/or been treated unfairly as an employee by the complainant if he chose to do so during that time. [13] Mr. Moss said that he is familiar with WDHP complaints and has represented members involved in this process. It has been his experience that those accused of wrongdoing are immediately informed and are separated from the complainant to ensure fairness for both parties. Had he been made aware of this complaint earlier he would have asked for specifics and made sure that he was not put in a position to be directly supervised by the complainant. [14] Mr. Moss was particularly concerned about this incident because this was the second instance of being informed late of a WDHP complaint. In the spring of 2009 he again was the subject of a WDHP complaint that had been instituted by two managers. The actual complaint had been filed as a counter complaint and was approximately one year old before Mr. Moss knew of its existence. That entire situation was resolved by way of a settlement between the parties but Mr. Moss was concerned because he should have been informed earlier of the complaint. The February 2012 letter was cause for him to think that the Employer was repeating its past mistakes. [15] In cross-examination Mr. Moss conceded that he did not work as a Correctional Officer on a full time basis due to his role as Union President. However, he was working most of his - 6 - time as a Correctional Officer at the beginning of 2012. As a Union official he has supported people during the WDHP process when there is an active inquiry. [16] Mr. Moss agreed that the WDHP Complainant had been a Correctional Officer working as an Acting Operational Manager at the time. He said that many of the staff were of the view that he had an attitudinal problem. He ultimately conceded that other than during this instance there were no issues between them. He did not have any specific recall about speaking with anyone in management about his concerns. UNION SMBMISSIONS [17] The Union began by asserting that the July 26, 2010 letter contains the necessary elements for a finding that it is disciplinary in nature. Further, there is no dispute that the letter is written regarding the grievor’s behavior while acting as the Union president. [18] The language found in the letter is not an allegation but a finding. It says that he has violated certain policies and Acts and specifically notes that the activity is a “further” demonstration of insubordination. It is of extreme import that this letter was placed in his personnel file. If this letter was a letter of counsel there would be no record of it on a personnel file. The grievor was never told this letter was not disciplinary. Indeed, in discussions with the superintendent he was told to attend the allegation meeting or face “further” discipline. [19] Mr. Wright, for the Union, conceded that a letter of discipline might be the low end of the discipline scale. However, there still must be just cause and none has been proven in the instant matter. The grievor reported an observation in support of his view that the Employer was inconsistent in its application of the no smoking policy and he should not have been ordered to violate his duties as Union president by providing details. When told merely to inform on managers the grievor was still understandably reluctant to do so because he did not want to put himself in a vulnerable position for having reported those who oversee his work as a Correctional Officer. He was entitled to different standing when acting as a Union President but the Employer failed to recognize that and disciplined him without just cause. The Employer has attempted to undermine the labour relations relationship and that must not be allowed by this Board. The Union urged that the Employer be ordered to remove this letter from any and all files and pay a nominal amount of damages. [20] Mr. Wright addressed the second grievance which alleged that the grievor’s rights were violated when the Employer failed to advise him that he was named as a respondent in a WDHP complaint filed by an Operational Manager. This failure could have put the grievor at risk during those shifts when the complaining OM supervised him. While it is true that nothing untoward occurred during this time, that is more a matter of complete serendipity rather than good management, according to the Union. Given that the situation has - 7 - happened in the past, it is not surprising that Mr. Moss contends that the failure to inform him was not an innocent error or oversight. Mr. Moss might have been subjected to a different standard of behavior by the OM during that time which might have resulted in discipline. The failure to inform the grievor is a violation of the WDHP policy itself and constitutes arbitrary, discriminatory and highly improper treatment of the grievor. The policy has no specified time lines for informing respondents but refers to the process unfolding in a timely manner. [21] The Union argued that there is no need for this Board to find that a right under the Collective Agreement has been breached. If a right has been impacted upon that is sufficient. The grievor was adversely affected by the Employer’s actions. In addition to having to work with the complainant, the grievor had no opportunity to marshal a defense in the event that this became necessary. He was prejudiced by the delay. [22] The Union stated that the Employer offered no explanation as to why the grievor was not told of the WDHP complaint. That failure certainly underscores that this Board should bring about a finding for the grievor. [23] In the alternative, according to the Union, the grievor’s health and safety rights under Article 9 of the Collective Agreement were violated because of the Employer’s inaction. A declaration should be rendered, and any correspondence regarding this matter must be removed from any and all files and damages such as vacation time should be awarded as damages. [24] The Union relied upon OPSEU (Dubuc) and Ministry of Community Safety and Correctional Services (2011) GSB No 2010-0490 (Abramsky); Re Firestone Steel Products of Canada and UWA, Local 27 (1978) 8 LA.C. (2d) 164 (Brandt); Re Burns Meats Ltd and Canadian Food and Allied Workers, Local P139 (1980) 26 L.A.C. (2d) 379 (M. Picher); OPSEU (Fraser) and Ministry of Community Safety and Correctional Services (2012) GSB No 2011-0644 (Keller); GSB OPSEU (Belanger et al) and Ministry of Community Safety and Correctional Services (February 2006) GSB No 1999-1782 (Harris); Re OPSEU (Belanger et al) and Ministry of Community Safety and Correctional Services (December 2006) GSB No 1999-1782 (Harris); Re Alcan Smelters and Chemicals Ltd. And CAW Local 2301 (1996) 60 L.A.C. (4th) 56 (Hope); and Re OPSEU (Dobroff) and Ministry of the Environment (2008) GSB No 2003-0905 (Dissanayake). EMPLOYER SUBMISSIONS [25] The Employer began by asserting that it elected to call no evidence because there was no need. In essence, it took the position that its method of proceeding is somewhat akin to a - 8 - motion for non-suit. Simply put, there was no case for the Employer to meet as there has been no violation of the Collective Agreement. [26] Regarding the first grievance the Employer submitted that clearly no discipline has been imposed. Further, the Employer could not and has not relied on the letter for any disciplinary purpose. Indeed, in the event that this Board determines that the letter is disciplinary in nature, which it is not, the Board should order its removal. The Employer does not take the position that the grievor overstepped his Union representative bounds and therefore it is not asserting there was just cause. It was conceded that the language on the top of the second page regarding insubordination is not a model of clarity and if the Board finds it to be problematic, the Employer invited the Board to order the paragraph removed from the letter. [27] However, the Employer did take issue with the other remedies urged by the grievor and the Union. This is not a case where damages should be awarded. There was no improper Employer action and therefore no damages ought to be assessed. The issue of smoking in the institution is a matter of some significant concern to the Employer. There has been much litigation before this Board in this regard. The Employer was attempting to act on the information provided by the grievor and obviously needed details in order to do that. [28] The Employer noted that there is no evidence of harm to the grievor in either of the two facts situations at hand. His health and safety was not put at risk nor has there been any evidence of harmed reputation or employment status. There was no evidence that the grievor’s role as Union president was affected in anyway. Further, it is to be recalled that he agreed that he has never been told that the Employer is relying on either of these situations for any employment related issues. [29] Regarding the WDHP grievance, the Employer reminded the Board that, irrespective of whether the Employer followed its own policy is not a matter that is properly before this Board. The policy does not form part of the Collective Agreement and therefore does not provide a distinct right to grieve. There must be some Collective Agreement right which was violated and there is not. The suggestion that health and safety rights were affected was not substantiated by any evidence. [30] The Union attempted to rely on an earlier incident to substantiate its allegations in this instance. The Employer urged that allowing the grievor to later rely on a fact situation which was not grieved or complained of at the time to substantiate a claim for damages would do great labour relations harm. Even if the facts as set out by the grievor regarding the earlier instance were something other than sketchy, this Board cannot take that evidence into account when determining whether damages should be awarded. - 9 - [31] The Employer relied on Re OPSEU (Hyland) and Ministry of Community Safety and Correctional Services (2012) GSB No 2009-2699 (Petryshen); Re OPSEU and Ministry of Solicitor General and Correctional Services (Ross) (2003) GSB No 2690/96 (Herlich); Re OPSEU and Ministry of Correctional Services (Fitzgerald) (1989) GSB No 1489/88 (Samuels); Re OPSEU (Sidhu) and Ministry of Agriculture, Food and Rural Affairs (2011) GSB No 1994-0232 (Herlich); Re OPSEU (Sager, Shelley et al) and Ministry of Transportation (2004) GSB No 2000-0377 (Mikus); Re Moosonee District School Area Board and Elementary Teachers’ Federation of Ontario (Nickle) [2011] O.L.A.A. Noand Re OPSEU (Union Grievance) and Ministry of Safety and Correctional Services (2005) GSB No 2002-0161 (Gray). DECISION [32] I turn first to the grievance that alleges unjust discipline. The Union contends that the note written to Mr. Moss was a written warning that was without just cause. The Employer maintains that it was not - and was not ever intended to be - discipline. It was conceded by the Employer that if this Board is of the view that the July 16, 2010 letter is discipline, it is without just cause and should be removed from Mr. Moss’ file. [33] In re Re Moosonee District (supra), Arbitrator Starkman was considering whether two letters written to the grievor were disciplinary in nature. In considering the jurisprudence on the issue, he set out the following, in paragraphs 13 and 14: There are a considerable number of cases commenting on factors to be considered in determining whether a letter is disciplinary or non-disciplinary in nature. These facts as set out in Dufferin-Peel Roman Catholic Separate School Board and OECTA (Grievance of KM) unreported, November 10, 1998 (Knopf) include: • Whether the employer intended to impose discipline • The impact upon an employee’s career • The employer’s stated intention as to whether the document would be relied upon to support disciplinary action in the future, • Whether there was an intent to punish or correct undesirable behavior through the imposition of a sanction, • Whether the substance of the document is an expression of employer disapproval (non-disciplinary) or a punitive measure intended to correct (disciplinary), • Whether the document sets out standards to meet in the future and is prospective in nature (non-disciplinary) or has an immediate effect upon the grievor (disciplinary). In Re Halton Community Care Access Centre and OPSEU Local 274 (Trapani) (2006), 149 L.A.C. 340 (Briggs) the factors are listed as follows: - 10 - • Other relevant correspondence and surrounding circumstances, if they help the arbitrator to interpret the memorandum, • Whether the memorandum was specifically directed at particular employees, • Whether the letter referred to possible disciplinary action if the conduct persisted, • Whether the letter suggested the employee’s actions were ill-founded or improperly handled, • Whether the language used in the memorandum refers to communication of performance expectations rather than the identification of concerns of unacceptable or insubordinate behavior possibly warranting discipline in the future if continued, • Whether the purpose of the memorandum appears to have been to correct undesirable behavior by specific employees, • Whether the employer addresses its concerns in a supportive manner and whether any support is offered to improve the perceived problems, • Whether the memorandum itself in in a disciplinary format. [34] After applying these factors to the matter at hand, I am of the view that the letter is non- disciplinary in nature. It is precisely what it states itself to be – that is - a notice of an upcoming allegation meeting to discuss certain facts that might lead to the imposition of discipline depending on the outcome of the meeting. There is nothing in the letter that says it is a warning or disciplinary in nature. It is not intended to punish the grievor, merely to order him to attend a meeting where the prospect of discipline will be discussed. There is nothing on the face of the document that would lead me to believe that the Employer intends to rely upon it in the event some level of discipline may be imposed on Mr. Moss in the future. Indeed, it would probably fail in any attempt to do so. [35] Mr. Moss was most offended by what he considered to be the predetermined view that certain conduct was “further insubordination”. I understand that view. The Employer acknowledged that this particular portion of the letter might lead one to question the meaning of the paragraph and that is was not a model of clarity. I certainly agree. [36] The Employer went on to state that if I found this offending paragraph on the second page of the letter to be “problematic” it would have no issue with this Board ordering that it be removed. I accept this invitation and order that paragraph to be removed. [37] Having made such an order I am obliged to note that I am at a loss as to why the letter remains on the grievor’s file at all. It was a letter to inform Mr. Moss of an upcoming allegation meeting that never took place. The grievor was ordered to attend and he did only to find that no one from management was available to meet with him and the meeting was - 11 - never rescheduled. It seems odd, to say the least, that a letter regarding an upcoming meeting remains on the file given that Employer has clearly elected never to hold the meeting. [38] Having found that this letter is non-disciplinary in nature this Board is without jurisdiction – except as specifically given as set out in the previous paragraph– to uphold the grievance. Accordingly, I do not have the jurisdiction to order its removal in total. However, I ask the Employer to reconsider the appropriateness of keeping this letter on Mr. Moss’ file. [39] Turning to the matter of the second grievance, the Union urged that Mr. Moss could have been put at risk as the direct result of the Employer’s failure to notify him quickly that he was the subject of a WDHP complaint filed by an acting manager. There was risk of discipline and/or risk to his physical safety. This breach of several provisions within the Ministry policy was arbitrary and discriminatory, it was urged. The Union contended that while there was no Collective Agreement provision that had been violated, there are three rights found therein that have been adversely impacted, Article 3 (No Discrimination), Article 9 (Health and Safety) and Article 21 (Discipline without just cause). [40] The Employer strongly disagreed that there merely had to be some assertion of a link between the exercise of management’s rights and another right in the Collective Agreement for a grievance to be upheld. It submitted that there has to be a negative impact and there has been none in this case. Indeed, it was suggested that the evidence was to the contrary in this case. [41] In Re Belanger (supra), Vice Chair Harris cited from an earlier decision found at paragraph 18 that “it is not unreasonable in a case where the union has demonstrated some degree of risk to the safety and health or employees to require the employer to explain, if not justify, the necessity and reasonableness of the employer-imposed risk.” Vice Chair Harris noted that the first step in these cases is for the Union is to “demonstrate some degree of risk.” In the matter at hand, the only evidence I have is that the grievor was concerned – after the matter had been determined not to be a bona fide WDHP complaint – that he might have been at risk of physical or employment relation harm. That is not sufficient. In any event, even if I am wrong about that, this is not a case where damages would have been awarded. [42] The grievor was annoyed at not being made aware of a WDHP complaint against him for some seven weeks after the complaint was filed. I understand that frustration. Hopefully, bringing this grievance forward has informed the Employer of the angst that can be caused by its failure to notify respondents in a timely fashion of WDHP complaints. I am obliged to say that while seven weeks is not an insignificant amount of time, neither is it outrageous. I appreciate – and would hope that the grievor does as well - that CECC is a - 12 - large institution with a vast range of operational and employment relations matters to address at any particular time. [43] For those reasons, the second grievance is dismissed. Dated at Toronto, Ontario this 10th day of June 2014. Felicity D. Briggs, Vice-Chair