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HomeMy WebLinkAbout1989-1492.Hayford.91-01-29 ONTARIO EMPL O¥~:S DE LA COURONNE CROWN EMPLOYEES DE I,.'ON TARIO GRIEVANCE C,OMMISSION DE SE'R'LEMENT REGLEMENT BOARD DES GRIEFS ~180 OUNDA$ STREET WEST, SU.tTE 2h30, TORONTO, ONTAR~. M5G 'tSO, RUE OUNOA$ OUEST, BUREAU 2100, TORONTO {ONTARtOt. 1492/89 IN THE MATTER OF /%N ARBITI~ATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BO&RD BETWEEN OPSEU (Hayford) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson M. Lyons Member H. Roberts Member FOR THE M. Bevan GRIEVOR Grievance officer Ontario Public Service Employees Union FOR THE J. Benedict EMPLOYER Manager Staff Relations & Compensation Ministry of Correctional Services HEARING~ April 4, 1990 July 30, 1990 2 DECISION Mr. Robert Hayford, a Correctional officer 2 employed at Millbrook Correctional Centre grieves a two day suspension without pay imposed on him. The events that led to the discipline in question occurred on July 30, 1989. On that day at approximately 8:40 a.m., Mr. Perry Wozniak, acting unit supervisor, noticed that some meal wagons were still in the hall way after breakfast. He decided that the wagons must be removed before inmates came down the hall at 9:00 a.m. on their way to the chapel. His concern was that the inmates might grab the spoons etc. as they went by to be used as weapons. Mr. Wozniak knew that the grievor was on duty on Wing 4 and that he was relaxing in the staff lounge. Mr. Wozniak went over and requested that the grievor return the Wing 4 wagon to the kitchen. There was no response from the grievor. Mr. Wozniak testified that where he made the request a second time, the grievor responded that he was waiting for the nurse to escort him for dispensing medication. Mr. Wozniak then pointed out that the nurse will be a while before coming down and that the grievor had time to return the wagon. The grievor told Mr. Wozniak that returning the Wing 4 meal wagon was not his duty, and that the persons who have that responsibility were also in the lounge doing nothing. Mr. Wozniak once again told the griewor to return the wagon. The grievor informed Mr. Wozniak that 3 according to the institution's guidelines that was not his job. He got up and crossed over to ~he duty off~ce. Mr. Wozniak followed him. On the way Mr. Wozniak observed C.O. Brown attempt to return the Wing 4 meal wagon. He directed her not to do so because he had asked the grievor to do it. The grievor pulled out the guideline book in the duty office and pointed out that according to the guidelines there are specific individuals assigned to return meal wagons. While, Mr. Wozniak acknowledged that, he told the grievor that those were guidelines only and that when a supervisor requests that a correctional officer do something, he should do it. The grievor left the duty office. Mr. Wozniak observed him walk towards the medical centre at about 9:30 a.m. Mr. Wozniak briefly discussed the incident with Mr. Craig Maher, the Shift Supervisor at the time, and agreed to prepare an occurrence report on what he believed was a case of insubordination. Shortly after noon the same day, before he had received Mr. Wozniak's report, Mr. Maher attempted to enter the smoking lounge but found the door locked, which was unusual. He knocked and then pounded on the door but with no response. Mr. Maher testified that he could see 10 to 15 officers inside, with the grievor seated closest to the door. He called out "Mr. Hayford, open the door", but the grievor did not respond. He went back to. the office, got the keys and 4 entered the lounge. He directed all the officers to return to work. They all did, including the grievor. Mr. Maher testified that he was "definitely angry" after the smoking lounge incident. He returned to the duty office. Shortly thereafter he observed the grievor drag a two-seat couch out of the staff lounge towards his work station. Mr. Maher told him not to remove the couch and the grievor promptly returned it to the lounge. The grievor told Mr. Maher that four or five officers had no chairs to sit on at the downstairs work station and asked if Mr. Maher would get them some chairs. Mr. Maher responded that he was not going to do that. A minute later, the grievor returned to the duty office and took a chair stating "I'll take a couple of these chairs that the supervisors took from the downstairs work station." Mr. Maher testified that he had no idea whether indeed there was a shortage of chairs at the grievor's work station. He did not attempt to find out either. According to him he felt that the grievor was having an attitude problem that day and needed to be calmed down. He stepped:out and asked the grievor to report to the office. The grievor inquired what the purpose was. Mr. Maher said that he will find out in the office. The grievor inquired if he will need a union steward and Mr. Maher stated that he will not permit a union steward 5 to attend. When the grievor came into the office, Mr. Maher ' informed him that Mr. Wozniak was submitting an occurrence report on the grievor's insubordination earlier that day. According to Mr. Maher, the grievor responded "So this is all over that fucking power tripping W°zniak''. When Mr. Maher told the grievor not to swear, the grievor allegedly stated "you sargeants and louies are too fucking much with your candy ass favourites that you give all the good fucking jobs to". Mr. Maher informed the grievor that he was suspended with pay for the rest of the shift and asked him to leave the premises and report back at 9:00 a.m. the next day. After 5 or 10 minutes, a union representative Mr. G. Powers, appeared at Mr. Maher's door and inquired why he was sending the grievor home. Mr. Maher replied "I am not sending him home, he is already gone". As he said that he noticed that the grievor was standing beside Mr. Power. Mr. Maher said that the grievor was being sent home "for insubordination, swearing at a supervisor, and a total attitude". Ne repeated that he wanted the grievor to leave the institution promptly and the grievor did so. The decision to suspend the grievor for 2 days without pay was taken by Mr. Bill Cooney, Deputy Superintendent, following a discipline meeting held on September 15, 1989. The letter dated September 26, 1989, imposing the'suspension sets out two grounds. 6 (1) On July 30, 1989, you failed to carry out the instructions of your supervisor, Mr. P. Wozniak, Acting OM - 14, when you refused to return the 4 Wing meal wagon to the kitchen. (2) On July 30, 1989, you made unprofessional and inappropriate comments to Mr. C. Maher, OM-16, Shift Supervisor. Mr. Cooney testified that he considered all the circumstances including the fact that the grievor had an unblemished record during his five years at the Millbrook Detention Centre and decided to impose a one-day suspension for each of the two incidents. The grievor testified that Mr. Wozniak always jokes around with officers. When Mr. Wozniak first made the request, the grievor thought he was joking. The grievor noticed that Mr. Wozniak appeared to be surprised when he told him that it was not his job to return meal wagons. According to the grievor that was why he decided to go over to the duty office and show Mr. Wozniak exactly what the guidelines said. When Mr. Wozniak made it clear that he wanted the grievor to return the meal wagon regardless of the guidelines, he knew that the discussion was at an end and that he had to do it. The grievor testified that he left the duty office with the intention of returning the wagon, but when he went outside he found out that the Wing 4 wagon was no longer there in the hall way. With regard to the events involving Mr. Maher, the grievor testified that he was sitting in the lounge and chatting with a c.o. when one officer got up and locked the door and covered the window with a piece of cardboard. Then some of the officers talked of how Mr. Maher will be "ticked off" when he finds out he could not get into the lounge. The grievor testified .that he knew there will be a problem, but wanted to keep out of it. He continued to chat with his colleague. A few minutes later, the grievor heard pounding~ on the door for 20-30 seconds, but no one moved. Another 20 to 30 seconds later, Mr. Maher entered the lounge and directed everyone out. All the officers, including the grievor left. The grievor's testimony relating to the incident involving the couch and the chairs is not materially different from that of Mr. Maher's, up to the point where he entered the office. He testified that when he was asked to report to the office, he felt that he was being accused of locking out Mr. Maher from the lounge. Once he was in the office, Mr. Maher informed him that a report was going in about "the stuff that went on in the morning". When the grievor asked what "stuff" he was talking about, Mr. Maher said "insubordination to Mr. Wozniak by refusing to return the meal wagon". The grievor testified that that upset him because he had not been insubordinate. According to him his reaction was to state 8 "what insubordination. I didn't fucking insubordinate". Mr. Maher advised him not to swear. The grievor was informed that because of the insubordination and his "bad attitude" he was being sent home for the rest of the shift. The grievor was instructed to leave the institute with some two hours still left on his shift. The grievor left the office. In the hall way he met the union representative, Mr. G. Powers and informed him of what had occurred. Mr. Powers said "Hang on. We'll find out wants going on" and walked towards Mr. Maher's office. The grievor followed him. The grievor admits that when he was accused of insubordination he was upset. He testified that while he uttered profane language out of anger, he was not directing that at Mr. Maher or anyone else. He vehemently denies that he made the two statements attributed to him by Mr. Maher. We agree with counsel for the Employer that it is not necessary for a supervisor to have said "I order you" before the Board can find insubordination. That would be to encourage or even force supervisors to order people around all the time rather than politely assigning work. That does not make good labour relations sense. All that is required to constitute an order is that the supervisor make it clear to the employee that he is expected to comply with the request. On the facts, three times, Mr. Wozniak clearly told the 9 grievor to return the wagon. Even after the grievor.told him that it was not his job and that the persons who should be returning meal wagons were right there in the lounge doing nothing, Mr. Wozniak still wanted the grievor to do it. At least at that point, it should have been clear to the grievor that Mr. Wozniak expected him to comply. While we find that there was an order, we do not find that there was a refusal to comply, which is a prerequisite for a finding of insubordination. We are satisfied that the . grievor believed'in good faith that if he can convince Mr. Wozniak that under the guidelines it was not his duty to return meal wagons, Mr. Wozniak would realize that he had made a mistake in assigning the work to him. For that reason he first told Mr. Wozniak of what he believed the guidelines said and then confirmed it by showing the relevant provision in the guidelines. When Mr. Wozniak made it clear that he wanted the grievor to comply regardless of the guidelines, he went out to return the wagon. It is common ground that the wagon in question was returned by another officer. We are satisfied that when the grievor left the duty office, he had the intention of complying with Mr. Wozniak's order, but by that time the wagon had'already been returned by another officer. The "work now and grieve later" rule associated with the concept of insubordination does not go so far as to require 10 an employee always to blindly comply with any direction even where he believes in good faith that the direction is contrary to the collective agreement or other established practice, and that the supervisor is unaware of that. He is entitled to point out his concern politely and to try to reason with the supervisor. In many cases, supervisors will appreciate an employee doing this because it can avoid potential disputes. However, the employee can go only so far in attempting to convince the supervisor that he is wrong. Once it is made clear to the employee that the supervisor is not interested in debating the issue, or that he does not agree with the employee's point of view and was expecting compliance despite the employee's concerns, he must comply, even if he remains convinced that the supervisor is wrong. On the facts before us, Mr. Wozniak was requesting that something be done by the grievor. He agreed that the grievor did not at any time refuse to do so. He tried to explain that Mr. Wozniak should not be assigning that work to him. Mr. Wozniak followed the grievor to the duty office when the grievor wanted to show him what the guidelines stated. After agreeing that under the guidelines it was not the grievor's duty to return the wagon, Mr. Wozniak still insisted that the grievor do it anyway. If the grievor refused to comply at that point he would have been guilty of insubordination. But he did not. He backed-off and went out to return the wagon. Besides, according to Mr. 11 Wozniak's own evidence, the whole exchange between him and the grievor lasted 45 seconds. In all of the circumstances we have concluded that the grievor was merely attempting to clarify his concerns and not defying a management order. Once it became clear that Mr. Wozniak expected him to comply despite his concerns, he intended to do so, The brief discussion the.grievor engaged in does not constitute insubordination. Now we turn to the second grounds for discipline relied on by the Employer. We do not find any culpability at all on the part of the grievor with respect to the events relating to Mr. Maher being locked out from the smoking lounge, the dragging of the couch or the removal of the chair. Mr. ,Cooney's letter does not claim that he was disciplined for'any of these either. There is a direct conflict in the evidence as to what the grievor told Mr. Maher. In determining whether the use of inappropriate language is disciplinable, a Board of Arbitration must consider the whole context in which the words were uttered. From Mr. Maher's testimony we conclude that he faulted the grievor for the lock-out incident, at least for failing to unlock the door when he called out. Mr. Maher admitted that he was definitely angry because of the lock-out 12 incident. In the circumstances, it is reasonable to conclude that the anger would have been at least partly directed towards the grievor. It was in that state of mind that he observed the grievor's conduct relating to the couch and the chair. Not surprisingly, Mr. Maher was further annoyed, and jumped to the conclusion that the grievor was deliberately provoking him. The result was that he immediately summoned the grievor and accused him of insubordination, eventhoughhe had not yet received Mr. Wozniak's occurrence report, and had done no investigation. Assuming that the grievor reacted with the statements as alleged by Mr. Maher, we are of the view that in the circumstances, there was no cause for discipline. On the basis of the evidence we find that the grievor had nothing to do with locking-out Mr. Maher. Mr. Maher agreed that it was possible that the grievor did not hear him call out to him to unlock the door. Mr. Maher admitted that he had no idea whether there was a shortage of chairs at the grievor's work station or whether supervisors had removed chairs from the work station. The grievor's evidence in this regard was not challenged. However, at the time he had assumed the grievor to be at fault. By his response to the grievor, probably caused by his angry state of mind, he in effect indicated to the grievor that he did not care about the griewor's concern. 13 We cannot fault Mr. Maher for being upset at being locked-out from the lounge. However, he was not justified in directing his anger towards the grievor without verifying the facts. The grievor felt that he was being unfairly accused of being insubordinate to Mr. Wozniak and faulted for the lock-out. We are satisfied that it was through frustration and anger that the grievor reacted with the profanities. While it was inappropriate for the grievor to have reacted as he did, we are satisfied that it was the result of a momentary flare-up of temper, and that the grievor did not intend to flout the authority of Mr. Maher or Mr. Wozniak. On the contrary he was merely protesting their accusations, which this Board has found to be unsubstantiated. While the grievor chose inappropriate language to communicate his protestation, in the circumstances that does not justify a disciplinary response. See, Re Ietswaard, 2155/87 (Dissanayake). See also, Re Hiram Walker & Sons Ltd. (1973) 4 L.A.C. (2d) 291 (Adams) and Re Canadian Westinghouse Co. (Canada) Ltd., (1966), 17 L.A.C. 427 (Palmer). In coming to the conclusion that no discipline was warranted, we have also considered the evidence that at the Millbrook Detention Centre, it ~was common for both supervisors and employees to use profanities in conversations. 14 In the result, we have concluded that no discipline was warranted for either of the incidents relied upon by the Employer. Accordingly, the two day suspension is rescinded. The Employer is directed to remove reference to it from all files and to compensate the grievor for all losses resulting from the suspension. The Board remains seized in the event the parties are unable to agree upon the implementation of this award. Dated this 29th of Januar~_¥ 199:1 at Hamilton, Ontario. N. Dissanayake Vice-Chairperson "I Dissent" (Dtssent attached) H. Rober~ca DISSENT 1492/89 I have read the award on the above noted case and must advise, with regret, that I cannot agree with the decision reached. At the beginning, we must be aware of the climate or atmosphere at Millbrook Detention Centre on 30 July, 1989, the date on which the incidents reported in ~his case took place. First, there was strong indication of work to rule action being carried out by the Correctional Officers in the bargaining unit. This type of job action finds those involved working by the book and implementing a slow down or restriction on normal job activities, just short of actual full withdrawal of services, and designed to hamper supervision in carrying out the free flow of duties generally associated with the daily levels of movement in the Centre. Second, twenty-six (26)' additional inmates had been brought into Millbrook from Guelph, where they had been directly involved in a riot. Such an addition of known troublemakers to the inmate population of Millbrook, which is in itself a maximum security centre, could only have increased the already demanding stress on supervision and to some degree on the Correctional Officers. This, coupled with the annoyance and frustrations of the apparent work to rule action would have to increase the tensions on supervisory personnel over and above normal levels. Supervisiors directly involved on 30th July 1989 P. Wozniak C02 - 30 July 1989, Acting Unit Supervisor OM 14 Mgr.- on this job for 1 1/2 months, 5 1/2 years at Millbrook C. Maher 30 July 1989, Acting Shift Superintendent for 4 months 16 years in total at Millbrook. The first incident of the day involved a meal wagon left in the corridor en route to the chapel, where morning services were about to begin. When P. Wozniak asked the grievor to return the meal wagon to the Kitchen to clear the corridor for inmates going to chapel service the grievor objected. He told the Acting Unit Supervisor that it was someone elses job since he had been assigned to accompany the nurse on her rounds, even though not actually doing so at the time he was asked to move th~ meal wagon. The award correctly supports the fact that Wozniak's request to the grievor did in fact, constitute an order,.no matter how it was worded. This order was indeed given more than once-three times to be exact. The award incorrectly, in my view, considers the grievor innocent of a refusal to comply with the order. The grievor did so by questioning the order in the first place and by continuing this through discussion and going into the duty office to produce the printed regulations in an effort to prove that someone other than he should be called upon for the task. Once he had exhausted all the time he could on this ploy, he then agreed that, not to refuse a direct order, he would move the wagon. Questioning and failure to comply with the order when given in the earlier stages constitutes a refusal since it is a fact that the order on these occasions was not carried out. From the above, no matter what attempt is made to hide it, he was ordered to move the meal wagon more than once and all the attempts to prove he should not have to, were in effect refusals, until such time as he gave up this debate with a relatively inexperienced supervisor, and agreed to move the wagon. The second incident of the day came about noon, when Acting Superintendent Maher, a seasoned supervisor, went to the smoking lounge to get staff back on the job. When he tried to open the door it was locked and despite pounding on the door it remained locked. He was forced to return to his office to get the key. According to the grievor's own testimony in direct examination, the Corrections Officers in the lounge were talking about how" cheesed off Maher would be not being able to get into the room". In attempting to get into the lounge before getting his key, Maher identified the grievor as sitting next to the door and called him by name to open the door. It is reasonable to believe the grievor heard Maher when the grievor did not respond this was another clear refusal of a direct order. This action was also a direct provocation of the Supervisor and a flouting of his authority. Following a break in time during which the grievor went to his post then returned, Maher asked hin to come into the duty office. At this point Maher had received a telephone call from Wozniak re the meal wagon incident, but no written report. The discussion between them that followed leads to the further Union disclaimer that any swearing that resulted on the part of the grievor could not be insubordination since it was only general conversation and not directed at any individual. When the grievor was asked in cross examination if he had any reason to believe that Wozniak would lie or attempt to fabricate a case against him, he said he did not. I am persuaded that the words attributed to the grievor at the top of page 5 of the award are indeed the response by the grievor, on hearing that he was being charged with insubordination. The swearing becomes, personally directed and not general, with the naming of Wozniak in the first instance and the reference to "sergeant and louies (Lieutenants)" in the second ihstance, since the grievor knew that Maher was a "louie" (Lieutenant) in rank. From all of the above I cannot accept the main premise of the Unions defence of the grievors actions, namely 1) that no direct refusal of Wozniak's orders re movement of the meal wagon took place. 2) that the swearing reported was just a general result of a momentary "flare up" by the grievor, upset by his supervisor's remarks and not personally directed at any individual. To condone these actions can only lead to further instances of 'this nature in the belief the perpetrators are now immune from any discipline. Accordingly, I believen the two (2) day suspension invoked by the Employer was not unreasonable but indeed minimal, and I would have dismissed the grievance. H. Roberts, Member