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HomeMy WebLinkAbout1996-0354SMYTHE96_06_17 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE ITELECOPIE (416) 326-1396 GSB # 354/96 OPSEU # 96C526 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Smythe) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE F Briggs Vice-Chairperson FOR THE M Bevan GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 6, 1996 ~ ( On February 26, 1996, the fust publIc sector strike began m the Provrnce of Ontano The strike conbnued for apprmumately five and one half weeks concludmg WIth a memorandum of settlement winch mcluded a "Return to Work Protocol", dated Fnday March 29, 1996 In that document, at Article 1001 was a prOVisIon enbtled "No Repnsals" winch stated. Both parties agree that there will be no repnsals, discnmination or retahatlon for any act or maction taken by any employee of the employer ansing out of participatIon m the strike. In addition. both parties agree that no employee shall imtiate or participate in any repnsal, dlscnmmatIon or retaliation for any act or inaction taken by a manager or excluded employee dunng the strike. Don Smythe has been a Correcbonal Officer at the EIgm MIddlesex Detenbon Centre (heremafter referred to as "EMDC") for apprmumately fIfteen years. He IS the PresIdent of lus Local Umon and was, not surpnsmgly, qwte active dunng the strike As the result of an mCldent wluch occurred Saturday'March 30, 1996, Mr Smythe was suspended for twenty 12 hour slufts. He and the Umon allege that tins dtsclplme was WithOut Just cause and request that I order that he be made whole m all respects. Mr Bevan, for the Umon, asserted that the dtsclphne unposed was extreme smce Its sole purpose was to send a message to the entIre bargammg urnt and "to teach the Umon a lesson" It was the Employer's pOSition that the gnevor engaged m actiVity wluch was mtended to harass and mtnmdate a fellow employee contrary to the express prOViSions of the "No Repl1sal" agreement and therefore was dtsclplmed With just cause wluch was appropnate m the CIrcumstances. The suspensIOn was severe because the grievor's acbons were premedItated and occurred WIthIn hours of the partles' agreement that there would be no retahatlon. At the heanng, Mr Mmvy, counsel for the Employer, Informed the Board that the suspensIOn would be reduced to twenty 8 hour slufts. The Board was mfonned that the gnevor would be reunbursed for the approxunately eIghty hours pay fOrthWIth. There were no prehmmary matters and the partIes agreed that I had the Junsdlcnon to hear 1 ( ~ 2 and detenmne the matter On Saturday March 30, 1996, Mr Smythe telephoned Ms. Lynn Reasbeck who has worked as a nurse at EMDC since October of 1989 Ms. Reasbeck was not at home and Mr Smythe chose to leave a message on her answenng machIne. The Board was twIce gIven an opportunIty to hsten to hts message whtch was, "Yea, Lyn, It's Don Smythe, PresIdent of your Local. Just callmg to let you know what a pIece of shtt you are. If you want to call me and talk about I~ I'll be glad to fuckmg talk to you." While the gnevor adnutted from the outset that he made the call, he dIsputes that the purpose was to fnghten, mtumdate or harass Ms. Reasbeck and therefore It was not a VIolatIon of the Back to Work Protocol. Ms. Reasbeck was a deSIgnated essentIal worker dunng the strike AccordIngly, she was scheduled to work forty hours per week. She worked for the frrst week and a half but then was unable to contInue, absentIng herself on stress leave because of the envrronment m the workplace Ms Reasbeck's spouse works in a managenal posloon at another correcttonal facihty m MonteIth. There were some dIfficulnes mvolvmg her spouse at hts workplace m MonteIth. After the strike began a number of menacmg telephone calls were made to her home WhIle she conceded that some of these were probably mtended for her spouse, she thought some were drrected at her These calls were dlstressmg to Ms. Reasbeck and she spoke With the pohce who mformed her that, m order for them to take any actIon, she would have to obtam a partIcular type of telephone whtch reported where calls ongmated. She bought that telephone and also spoke WIth Don Smythe and other Dmon offiCials to ask for the calls to stop Accordmg to Ms. Reasbeck, the gnevor told her that there was nothIng that he could do because he dId not know who was makIng the calls ( ( 3 Ms. Reasbeck partIcipated m the picket hne at the mstltutlon. She returned to work the last week of the strike because she had heard that the Umon was gomg to withdraw all essentIal selVlce workers and she was concerned that there would be no nurse at work. She felt that she was morally and etlncally obhged to work. She worked on the Monday and Tuesday of that final week and, rather than go home, she stayed at the mstltutlOn. She testified that she stayed because she was temfied for her safety and for her cluldren's well bemg. At tlus pomt, she was receiving ten to fifteen telephone calls per day Dunng the last few days of the strike, Ms. Reasbeck became aware that her name was on a "Scab LIst" at the Umon's strike trailer She was not pleased with tlns development and, on Fnday March 29, 1996, she telephoned another nurse, Charlene Cole, who IS also a Umon steward. Dunng tlns mscusslon Ms. Reasbeck SaId that she wanted to find out why her name was mcluded on tins hst and to try to rectIfy the situatIOn. Ms Reasbeck asked Ms Cole to have Mr RIchardson, another Umon offiCial, contact her Ms Cole SaId that It would more appropnate 1f Mr Smythe spoke With her and SaId she would contact hun. On Saturday March 30, 1996, Ms. Reasbeck was out Wlth her daughter for the day and when she returned home she checked her messages. She actIvated her message machIne and heard the earlIer mentloned message from the gnevor She SaId she was fnghtened after heanng the message. She contacted her husband who had been re-asslgned to work at EMDC and played the tape for hun. Later Mr Reasbeck played the message for Mr George Sunpson, Supenntendent, who asked each of them to wnte an mCldent report about the matter She had preVIously made known to Mr Sunpson that she had been recelvmg harassmg telephone calls at her home There were no other messages that she kept. She testIfied that, after gettIng the new answenng machIne, most calls were sunply nngs and then disconnectIons. Shortly after the strike began, as she was gomg to work, she encountered the gnevor and ( ( 4 asked hnn IT he would speak WIth the local at Monteith and ask them to stop telephonmg her Mr Smythe told her that the problem was with her spouse and that she was a member m good standmg. She made her discontent known and asked If the gnevor could mtervene on her behalf. He told her that he would get m touch With the local President and would see If he could get whoever was harassmg her to stop As a result of the situatIon m Monteith mvolvmg her spouse, a fax was sent to many Umon locals wInch had a reference of some sort to Ms. Reasbeck. She was vet)' unhappy about tlus development and called the author of the document to lodge her concern and displeasure She demanded that a retractlon and an apology be faxed to the same people who had received the ongmal document. TIns was done. Ms. Reasbeck also spoke to the gnevor dunng the strike about her truck, wluch was ill the parkIng lot at Monteith and wluch the picket lme members would not allow through the picket lmes. Her husband had dnven It to work and she wanted to retneve the velucle Mr Smythe mdlcated that he would speak WIth the Monteith local president about the matter He chd and he notrlied her that the Umon members would not allow her to pick up her truck. Mr Slffipson has been m correctlonal sefVlces for twenty-seven years and the Supenntendent at EMDC for approxunately SIX years. He fITst heard oftlus mCldent on March 30, 1996, when Mr Reasbeck came to lus office Mr Reasbeck was agItated and angry and told hrm of the call from Mr Smythe Mr Reasbeck was able to access the message from Mr Slffipson's office so that they could hsten to It together Mr Slffipson told Mr Reasbeck to wnte an mCIdent report and to ask lus spouse to do the same He also asked Mr Reasbeck to make a copy of the tape With a wl1ness overseemg the procedure Mr Slffipson testIfied that he thought the call was harassmg and mturudatmg because It was ( ( 5 loud, aggressIvet rude, crude and dIsrespectful. He was fmnly of the VIew that the onJy purpose of the call could be to threaten Ms. Reasbeck. It was retahanon agamst Ms. Reasbeck for her conduct and behaVIour dunng the strike. Mr Snnpson spoke to the gnevor before he detennmed what penalty to impose. The gnevor told hun that he called Ms. Reasbeck m response to a diScussIon she had WIth Ms. Cole. Mr Snnpson took a nwnber of factors mto account m assessmg the level of dlsclplme to unpose, mcludmg the gnevor's status Wlthm the Urnon, lus knowledge of the Back To Work Protocol, the fact that he Violated the Protocol Wltlun twenty-four hours of Its bemg SIgned, the fact that he had receIVed trammg m harassment and mtmridanon, rus years of serVIce and ills dlsclplme free file. He consulted With lus Deputy Supenntendent about the level of disclplme after the meeting held with the gnevor and Umon OffiCIalS. In cross-exammatlon, Mr Sunpson was asked whether he bebeved the gnevor when he had told hun that lus call was m response to a request to speak WIth hun. He did not belteve the gnevor at the tune and did not check With Ms. Reasbeck regardmg the veracIty of the statement untIl after the disclplme had been unposed. Tlus IS confmned m the letter of dlsclplme wluch stated, m part: Mr Collnn adnutted the call had been made but you had done so only because Mrs. Reasbeck had told other staff that she Wished to talk to you about bemg labelled "a scab" I then played a recorded tape of your message. There IS no attempt, on the tape, by you, to dIscuss what Mr Collnn had clanned was your need to speak With Mrs. Reasbeck to dIscuss her concern. In fact, the tape start out With you statmg" .It s Don Smythe, President of you Local. Just callin2 to let you know. what a piece of shit you are." (emphasiS added). You are loud and your manner IS completely dIsrespectful and blatantly mtinudating, harassmg and threatemng. It IS difficult to even consider that you had any purpose ill makmg the call other than to mtlffildate and harass Mrs. Reasbeck. The Employee Dlsclplme Report confmns lus dlsbehef. It states, m part: .Mr Smythe clauned he called Mrs. Reasbeck because he had been told by Gary Mills and Dave RIchardson (C.O 's) that Charlene Cole, (Nurse) had told them that Mrs. Reasbeck WIshes to talk to hIm about bemg called a scab (Mrs. Reasbeck derues tlus). It IS dJfficult to accept that Mr Smythe was attempting to dIscuss this WIth Mrs. Reasbeck when he starts out by ( ( 6 IdenufYmg hlIDsclf as the PresIdent of the Local and then says, "Just callIng to let you know what a piece of slut you are" and then contmues, "If you want to talk about IT (the statement I Just made, not about being a scab) r'lI be fucking glad to talk to you." Mr Simpson was questioned at length about comments made m the Employee Dlsclplme Report. The document asks whether the offence was "an Isolated mCldent m the employment lustory of the employee" Mr Sunpson wrote, "TIus offence occurred unmedlately after the legal strike wluch commenced Feb 26 - March 29, 1996 Several complamts were receIved from female staff that were receiVIng harassmg telephone call from Mr Smythe regardmg them reportIng for work. Also, an AsSIstant Manager of a nearby motel where the mstltutIon mamtamed a room was threatened by a person who IdentIfied hnnself as Mr Smythe" Mr Simpson mdIcated that the offence was premechtated and contrary to the Personal Harassment Pohcy The report also md1cates, "The VlCtun IS mamed to an OM-16 who was locked mto the E.M.D C. for the duration of the strike. PreViously he was on duty at the MonteIth C C. when he was accused of assaultIng a correctional officer while he was drunk on duty Although not suspended, he was removed from duty to resolve a work refusal. He was then sent to E.M.D C where he worked after the Local Dmon had pulled the essential servIces workers. Mr Smythe took the opportunIty to harass Mrs. Reasbeck at tlus tune" Mr SImpson testified that he chd not mvesngate the allegations regardmg Mr Smythe harassmg other female employees and the ASSistant Motel Manager because they dId not want to pursue therr complamts. When It was suggested to Mr Sunpson that these comments substanuated the fact that he had taken Mr Smythe's conduct dunng the strike mto account m determmmg the gnevor's penalty, he strenuously demed It. It was also contended that Mr Sunpson had been frustrated dwmg the strike by the MinIstry's deCISIOn to suspend the abilIty of managers to lIDpose chsclplme. He responded "absolutely no~ not m the least" He was then asked about a letter he authored and sent to The Honourable DaVId Johnson, Charr of Management Board of Cabmet. Mr Sunpson IS the PreSident of the Correctional SefVlces - Sernor Officers \ ( 7 AssociatIon and, as such, he asked Mr Johnson to reconsider the government's drrectIon m thiS regard. In a letter dated March 6, 1996, he stated, m part: The difficult working condItIons of the correctional managers IS being exacerbated by the government's deCISIon to suspend nonnal workplace managenal authority This deCIsion IS makIng the relationship between the managers and the essentIal servIce workers untenable. Our expenence indicates that a contmuance of this situatIon, without recogrutIon and modificatIon by the Government, will result in more serious consequences than have been expenenced to date. The Assoclabon is concerned that the tensIOns m the mstitutIOns will reach a critIcal pomt tlus commg Sunday when the essentIal servIce workers are scheduled to change places With those workers currently on the picket lines. At that point, the Association suspects that the routmes and procedures establIshed by managers dunng the fIrst two weeks of the strike, will mtenbonally be disrupted. If and when that happens, It is the collective opinIon of our members that serious disturbances will occur across the provmce, placing the safety of persons and property in extreme Jeopardy Mr Simpson Imposed what was, in lus View, the penultunate level of dlsclplme. He canchdly suggested that chscharge was too severe m the crrcumstances. He was adamant m Ius eVidence that he dtd not dtsclphne Mr Smythe because of anytlung that occurred dunng the strike and that any reference m the Dlsclplme Report to the penod of the strike was for "background mfonnanon" purposes only It was explamed that these reports go to staff relatIons and are eventually placed on the employee's file. Mr Smythe conceded that the gnevor probably thmks that he was not harassmg Ms Reasbeck, however he fmled to understand how that mIght mItIgate the penalty He testIfied that 1f the call had been made ill a normal tone of vOice and contamed no foul language, there probably would have been no dlsclplme llllposed. On Apnl 4, 1996, the same day the gnevor receIVed the letter settIng out Ius dIsclplme, a memorandum was sent from the Office of the Secretary, Management Board of Cabmet, to all Deputy MinIsters regardmg "Post-Strike Harassment PolIcy" Mr SImpson received tlus document a week or two after the Issuance date. The polIcy states PREAMBLE { ( 8 Now that the OPSEU strike IS over, the employer must agam get on With the bus mess of provldmg full pubhc services, while at the same tune ensunng that its employees can provide those servIces in an enviromnent that is free from the bitterness and hard feelmgs which can be the legacy of strikes. PRINOPLES 1 Employees have the legal nght to engage m legal strikes. 2. Employees can choose, by law, to not partlclpate m the strike and to exercise their nght to contmue to report to work dunng the strike. 3 The employer has the nght in accordance with the newly executed collectlve agreement, to make reasonable rules and regulatlons and to undertake dIsciplme, where the need arIses, ill order to ensure that employees are not dlscnrnmated against or harassed and that the employer's workplace is not disrupted because any employee exercised hIs or her legal nghts during the strike. Both the employer and OPSEU have committed themselves to restonng harmony m the workplace. To that end, the parties in their"Retum to Work Protocol", agreed that there will be no repnsals, dIscrimInatIOn or retaliation for any act or inaction taken by any employee of the employer ansmg out of partiCIpatiOn m the strike. Furthermore, both parties agreed m the protocol that no employee shall mitiate or partiCipate in any repnsal, dIscnnunatIon or retalIation for any act or inaction taken by a manager or excluded employee during the strike. PROHIBITED BEHAVIOUR Any behaVIOur or activity by an employee that creates a hostile or negative work enVlTonment for another employee because the other employee engaged ill the above-noted lawful strike- related activIties IS prohibited by tlus policy An employee who engages in any behavIOur or activity prohibited by tlus pohcy Will be subject to unmediate disciplme. Dlsclphne can be unposed for any prohibited behavIOur or actlVlty, regardless of whether the person or persons subject to the dtscnnunation or harassment actuall) complamed about the behaVIOur or activity Dlsciplme for breaches of this pollcy will be progreSSive, up to and mcluding suspensIOn or termmatlOn or employment. Any discipline Imposed under tlus polIcv will be subject to the normal gnevance procedures apphcable to the employee. Examples of Prohibited BehavIOur or ACtIVl\}' - verbally abusmg another employee, including the use of profanity or msults, whIch can be related to an employee's action or mactIon dunng a legal strike; ( ( 9 - comments or actIOns that create a hostile or negative work enVlfonment regardless of whether the comments or acUons were directed at a particular mdtvldual. This mcludes the use of derogatory words or posting of inappropnate signs or notices, - undennming the abihty of another employee to perfonn his or her work mcludmg refusmg to work or co-operate WIth the employee on work-related matters, - undennmmg the abihty of another employee to perfonn his or her work through unwanted telephone calls, letters or e-mails to another employee, either at work or away from work; - damagmg or defacmg the property or eqwpment of another employee SAMPLE LETTER OF WARNING On [date and time], you were overheard callmg another employee a [mdlcate tenn used] [Itemize any other breaches of the policy] TIus behaviour is contrary to the strike-related pohcy and will not be tolerated m the workplace. Although you have previously been made aware of the policy, a copy IS attached to tlus letter for your mformation. Regardless of the mdividual actions or choices made dunng the strike, It is necessary for all employees to treat each other With digmty and respect You must ensure that your future actIOns and behaVIOur comply With this policy This letter IS a written warning regarding you mappropriate behaVIOur Any further breaches of the strike-related harassment pohcy will result m the unposition of d1sclplme, up to and including termmatlOn of employment. Yours truly, Mr Sunpson testified that even If he had received tlus before he dlsclplmed the gnevor he would not have given hun only a letter of WarnIng. He VIew was that a letter would have been appropnate If the gnevor had merely called another employee "a name" He saw the gnevor's actions as a premeditated call dehvered m an aggressive manner With mtent to fnghten Ms. Reasbeck. Indeed, Mr Sunpson thought that the whole pomt of the call was to threaten Ms. Reasbeck. The fact that the gnevor left the message was suffiCient for dtsclplme to flow, m lus VIew When It was suggested that there was no stated threat ill the message left for Ms. Reasbeck, Mr Simpson was of the VIew that there "was an unphed threat m there somewhere" \ ( 10 Me SImpson candidly adnutted that but for the Back to Work Protocol the gnevor would have been dlsclplmed for some of hts actIVIties. Further, neither Mr Sunpson nor hts AssociatIon agreed With the Back to Work Protocol. Donald Smythe was qUite actIve dunng the strike. He was out of town and returned to the strike traIler at approxnnately 2 00 p.m. on Saturday March 30, 1996 At that tune he was told by two members that Ms. Cole had been speakmg to Ms. Reasbeck about bemg put onto the "scab" hst. He decided to call Ms. Reasbeck and speak With her personally about the matter He did not know that he would get an answenng machme He testIfied that he was gomg to tell her about the process she would have to go through to retain her status as a member m good standmg, wluch was to gIve the Umon the money that she had earned. He expected her to call back and discuss the matter With bun. He had not planned to threaten Ms. Reasbeck and the gnevor dtd not thmk that lus message was, m fact, threatenmg. He dtd not ffitend to harass or fnghten Ms. Reasbeck. The gnevor testtfied that he dtd not call anyone about bemg a scab Neither had he called Ms Reasbeck at any pomt durmg the strike He spoke to her on only the two occasIOns wluch she gave eVIdence about. Mr Smythe conceded that he knew Ms. Reasbeck was under stress and that her health was an Issue of concern. He also was aware that she was anxious about telephone calls that were bemg made to her house. The two dIScussIons he had WIth Ms. Reasbeck regardmg the telephone calls and her attempts to free her velucle were not planned. He ran mto her on the lme and there was no profamty mvolved. The gnevor demed that he wanted to msult Ms. Reasbeck and repay her for her actIVItIes as a scab He had not spoken to anyone WIth lugher authonty Wltlun the Umon about tlus call. He knew about the Back to Work Protocol and knew that the Umon had agreed that there would be no repnsals. In cross-exammatJon Mr Smythe agreed that he dId not need to call Ms. Reasbeck "a pIece ( ( 11 of slut" He agreed that It may not have been a mce tlnng to say but that he dId not threaten her He demed that lus manner was aggressIve or msultmg. He has not apologIZed because he had not seen Ms. Reasbeck smce the mCldent and because lus letter of dlsclplme ordered bun to refram from communicating WIth her EMPLOYER SUBMISSIONS Mr Marvy, for the Employer, acknowledged that the onus IS on It to show Just cause for the dIsclplme. The suspensIOn of twenty 8 hour shrfts was JustIfied m the clfcwnstances because the gnevor harassed and mtnnidated a fellow employee m dIrect contraventIon of the Back to Work Protocol. It IS unportant to put the telephone call mto context, the Employer subnntted. It was made WithIn hours of the end of the strike, It was not a spontaneous or spur of the moment act, he chose to use those words and to leave them m message form. As well, he knew that she vOIced earher concerns dunng the strike and that she had been absent due to stress dunng the strike He was aggressIve and profane. Snnply put, there could have been no other purpose for the call than to retahate. If there was another purpose, such as to mstruct her as to how to return her status to a member m good standmg, he could have SaId that on the message He dId not. It was contended by the Employer that as PresIdent oflus Local Umon, the gnevor knew that the parties had agreed to no retaliatIon and yet, Wltlun twenty four hours of that document bemg executed, he knowmgly VIolated It. In the aftermath of the strIke It was appropnate to debver a severe penalty to show that harassmg a co-worker about any work related iSsue was unacceptable behavIOur ( ( 12 AntICipating the Dmon's argwnent, Mr Marvy stated that thIS mCldent cannot be consIdered as off duty conduct. Wlule It may be true that neIther the gnevor nor Ms. Reasbeck were actually at work, there can be no doubt that tlus IS a work related Issue The labour relanonslup between partIes IS not off duty conduct. The Employer asserted that the gnevor cannot attempt to hide behInd the silleld onus Umon office. His posltlon with the Dmon cannot protect hnn m these circumstances from dIsclphne for mappropnate language and behaVIour Tlus IS slgmficantIy dIfferent from the hne of Junsprudence wluch allows Dmon officers to use profamty dunng the exercise of therr authonty Wlth the Employer dunng the gnevance procedure In the mstant matter, the gnevor knew of the protocol and mtennonally VIolated It Wlthm hours of Its executIon. TIns IS a most senous offense and the penalty ought to reflect that slgmficance. The Employer rehed upon Re Boeing of Canada Ltd. And International Association of Machinists & Aerospace Workers, Local 1542 (1991), 23 L.A.C (4th) 27 (R.M. Brown), and Re I.M.P. Aerospace Components Ltd. And United Steelworkers of America, Local 4883 (1995), 45 L.A.C (4th) 363 (Outhouse) UNION SUBMISSIONS Mr Bevan, for the DillOn, began by undersconng that the gnevor telephoned Ms. Reasbeck on March 30, 1996 m response to her request to speak WIth a Dillon OffiCIal about bemg mcluded on the scab lIst. Tills fact was told to Mr Sunpson at the tune of the meetIng to dIscuss the matter and he dId not even bother to check Its authentICity before metIng out the most severe dtsclplme short of chscharge. Indeed, the level of dtsclplme was actually greater than the maxnnum allowable and tlus was for one reason, that IS, to get back at Mr Smythe for ills partIcIpanon m the strike and to make an example of hnn. If there IS any doubt of ( ( 13 thIS, one has only to look at the Employee DIscIphne Report to confmn that the gnevor's strIke actlVItles, proven or not, were taken mto account m assessmg penalty Indeed, Mr Sunpson stated m a forthnght manner that he would have dIscIplmed the gnevor dunng the strike If he had been allowed to. The Druon remmded the Board that Mr Sunpson SaId that he would not have fIred the gnevor for the mCIdent, even Jihe had a blenushed work record. Clearly the gnevor's fifteen year dIsclplme free record dtd not nutlgate the penalty Neither dtd the MinIstry's own pollcy, because Mr Sunpson ffid not agree With the back to work protocol. He was annoyed WIth the gnevor's behaVIour dunng the strike and took the very first opportunIty to come down hard on the grievor The Dmon conceded that tf It was mtnmdatlon or harassment, then It was a breach of the Back to Work Protocol. However, gIven that the gnevor was telephonmg Ms. Reasbeck m response to her request takes It out of the realm of mtnmdatlon and harassment. Even Mr SImpson conceded that the gnevor nught beheve that he ffid not harass Ms. Reasbeck. In those Clfcumstances a letter of wammg would have been sufficIent. A letter of wammg would have compiled WIth the MinIstry's own pohcy m the event that the gnevor's conduct was found to be harassmg or mtnmdatmg. Mr Bevan wanted the Board to appreCIate the usual level of dlscIplme generally meted out In CorrectIonal ServIces. In that regard he relted upon a number of deCISIOns from the Gnevance Settlement Board mcludtng Re The Crown in Right of Ontario (Ministry of Correctional Services) and OPSEU (Jones) (September 10, 1992 wrreported eVenty) wherem the gnevor had a five day suspensIOn unposed by the employer for "use of exceSSIve force on an mmate", Re The Crown in Right of Ontario and OPSEU (Dannenberg) (January 16, 1991), wrreported (Dlssanayake) a case where the employer suspended the ( ( 14 gnevor for fifteen days followmg the escape of an mmate while he was on a hospItal escort whIle m the gnevor's custody; Re The Crown in Right of Ontario and OPSEU(Stockwood) (July 4, 1992) unreported (Roberts), a decIsIon where the gnevor was given a ten day suspenSiOn for "gross msubordmanon" when he dId not shave lus beard m compliance WIth pohcy; Re The Crown in Right of Ontario and OPSEU (Nunn) (August 15, 1994) unreported (Gorsky) wherem the gnevor was suspended by the employer for twenty days for allegatIons of sexual assault. In reply, Mr Mcuvy suggested that the Employee DIsclplme Record was wntten after the dISClplme was tmposed and IS therefore melevant for the purposes of the Board's consIderatIon. The letter of dIscIplme IS the appropnate document to consIder and It does not set out the facts referred to m the DlscIplme Report. Mr Stmpson was clear m lus eVIdence that the mfonnatIon set out m the DIscIplme Report was stmply for backgroWld purposes. Fmther, It was urged that the gnevor's monvatlon was not an Issue for tIns Board. DECISION The Dmon asserted m ItS openmg statement that the mCldent at Issue fell mto the category of off-duty conduct. However, It dId not VIgorously pursue tlus lme of argument m Its fmal SUbtnlSSlOns. In my VIew, m these clfcumstances, there can be no doubt that tlus matter was work related. There was no suggestlon that the telephone call was made for personal reasons unrelated to the workplace Indeed, Mr Smythe mtroduced hunself on the tape as the PresIdent of the Local. Generally speakIng, dIscussiOn or commumcatIon wlnch takes place between two people who happen to work for the same employer would not be necessanly be conSIdered appropnate for reVIew m a dIsclplmary heanng. However, the facts m the mstant matter do not constItute off duty conduct. ( ( 15 Boards of Arbltratlon are asked to make a number of determmatlOns m dlsclplmary cases The first IS to assess whether there IS Just cause for any dtsclplme In the event that there IS cause for d1scIphne, the Board IS then requrred to determme whether the dIsclplme unposed IS appropnate m the crrcumstances. If It is decided that the dIsclplme was too severe ill the cIrcumstances, the Board can alter the penalty In the mstant matter, the Back to Work Protocol specifically states that there wIll be no "repnsals, wscnmmatlon or retahatlon for any act or macnon taken by any employee of the employer ansmg out of parttClpanon m the strike" In assessmg whether there was Just cause for d1scIplme m tlus matter, I must first consIder whether Mr Smythe's telephone message can be considered a repnsal, discnmmatlon or retalIatlon regardmg Ms. Reasbeck's actlons or mactlons dunng the strike. If so, then the protocol was breached. Ms. Reasbeck tnltlated the commumcatlon. She learned that she had been mcluded on the Dmon's scab lIst and she was not happy about It. She called her Dmon steward to ask her to make mqwnes so that the matter nnght be resolved. Accordmg to Ms Reasbeck, she wanted Ms. Cole to speak WIth Mr Richardson but Ms. Cole smd that she would speak WIth the gnevor When the gnevor retmned to the strike trailer from Toronto on March 30, 1996, he heard about Ms. Reasbeck's concerns and decIded to call her I accept that the phone call was made m response to Ms. Reasbeck's queI)' to Ms. Cole At the heanng, Ms. Reasbeck dId not express surpnse and dIspleasure WIth the fact of the call, only WIth the content. There IS no eVIdence wluch would lead me to belIeve that the gnevor was callmg for any other reason than m response to Ms. Reasbeck's ongmal queI)' That determmatlon IS nnportant because It should be clear that tlus IS not a case where a Druon preSIdent deCIded to Sit down and telephone the members on the scab lIst With the express mtentlon to annoy them. That would be an entIrely different matter wroch would probably be VIewed qUIte dIfferently ( ( 16 However, that he was callmg m response to Ms. Reasbeck's quety does not end the matter That fact, m and of Itself, does not detenmne whether there was a repnsal or retalIatton. Mr Smythe testtfied that he called to explam to Ms. Reasbeck how she could return herself to the status of member m good standmg. That may have been Ins mtentIon but there was absolutely no suggestIon of that mottve on the tape. As stated earher, I accept rus eVidence that the reason for Ins call was m response to a request for an explanatIOn from Ms. Reasbeck. Absent her request, I accept that he would not have called. Therefore It IS dIfficult to detemune that he mtentIonaIly set out to Violate the Back to Work Protocol. But Violate it he d1d. I do not belIeve that Mr Smythe's called Ms. Reasbeck "a pIece of slut" was for any other reason than because she was, m rus View, a scab Indeed, he d1d not suggest othefWlse at the hearing. His charactenzatIon of Ms. Reasbeck as a scab was drrectly related to her actIVity dunng the strike. Does a breach of the protocol constItute Just cause for dtsclplme? I bebeve It does. The partIes clearly felt the Issue of no retahanon for strike actIVity or non actIVity was of sufficient Importance that they specIfically addressed It m their final settlement document. Both parttes agreed to refram from retahatton. Therefore, both partles bear a sIgnIficant onus to uphold theIr agreement. Generally, when partIes mvolved m a work stoppage come to such an arrangement It IS m the hope that, by forgtvmg the past, they can get on WIth the future TIns makes good labour relatIons sense Violanons of such an agreement do not allow the partles to begm the Journey back to theIr normal relatIonshIp It IS for thIS reason that such breaches of the protocol must be Viewed as Just cause What level of dlsclplme is appropnate? The CIrcumstances of any parttcular case WIll detenmne the answer to that quesnon. In the mstant matter I am of the View that the dIsclplme IS too harsh. In amvmg at thIs deCISIOn I have taken a number of factors mto aCC01mt. Mr Sunpson stated that he was of the VIew that the gnevor mtended to fnghten and \ ( 17 threaten the gnevor I dIsagree. I bstened to the tape of the message left on Ms. Reasbeck' s answenng machIne twIce and I also heard the gnevor read a copy of the message m Ius eVIdence. HIS message was rude, crude, mconslderate and, no doubt, hurtful to Ms. Reasbeck. It was ill adVIsed and a contrary to common decency However, was It threatenmg? I thInk not. The gnevor has a powerful vOIce. While I can appreciate how shockmg It would have been for Ms. Reasbeck to hear the message, I detected no sIgruficant dIfference m the tenor of the gnevor's VOIce on the tape from hIs speakIng VOIce at the heanng. In assessmg the level of penalty It IS appropnate to look at other rmogatmg factors. Firstly, the gnevor IS a fifteen year employee WIth an unblermshed record. I would have thought that tlus fact would have played heavily m the Supenntendent's detennmaoons. It appeared to cany no sway at all m the Employer's deliberatIons regardmg the matter of penalty At the hearing, Mr SIDlpson satd that tlus was not a matter that would have caused bun to fire the gnevor and yet he unposed the maxunum penalty short of dtscharge. AddItIonally, the gnevor made the telephone call m response to a query made by Ms Reasbeck. He dId not, on ills own InltiatIve, set out to confront Ms. Reasbeck. The gnevor offered tIns explanaoon and It was not even mvesogated by the Employer unol after the suspenSIOn was gIven. Unfortunately, when It was, accordmg to Mr Sunpson, Ms. Reasbeck demed It. There are some aspects of thts case whIch I found troublmg. The Umon suggested that the Employer over-reacted and gave the gnevor a slgmficant suspenSIOn to send a message to the gnevor and the entlre bargammg wnt and to retahate for Mr Smythe's' actIons dunng the strike. I understand how the Union would make that allegation. When he was asked If he was fiustrated about his mabibty to dtsclphne employees dunng the strike, Mr Snnpson satd i ( 18 "absolutely not, not at all" I then was proVIded With a copy of the letter wntten by Mr Simpson to DaVId Johnson allegmg that the sltuanon was "untenable" and should not be allowed to contInue Those two facts are ddlicult to reconcIle. Further, although I appreciate that the Employee Disclplme Report was wntten days after the actual dlsclplme was unposed, It IS tellmg. Mr Sunpson testIfied that all of the mformatIon set out therem regardIng the gnevor's partICIpatIon m the strike was merely "background" he was proVIdmg to the staff relanons department. However, I beheve that he took that "background" mformanon mto accoWlt when determmmg the appropnate level of dtscIplme GIVen that much of the backgroWld was concemmg the gnevor's conduct dunng the strike, It was completely unproper to rely on It eIther drrectly or mdrrectly Moreover, the Employer put Its mmd to the Issue of possible VIolanons of the Back to Work Protocol. In Its memorandum, It IS clear that Vlolabons should be dealt WIth m a progressIve manner Wlule I appreciate that extreme SItuatIons call for extreme measures, the facts m thiS case are not extreme, m my View The sample letter of warnmg prOVided by the government appears to be drafted for very fact SItuation before me I understand that Mr Simpson dId not receive the dtsclplme polIcy until after he had unposed the suspenSIon. However, he was candid that he dtd not reViSIt the dtscIplme unposed after he receIved the memorandum. I fmd the level of dlsclplme unposed troubhng. The gnevor was suspended from workmg twenty 12 hour slnfts. In monetaIy terms, tlus IS a penalty m excess of five thousand dollars. While It IS true that, at the heanng, the Employer reduced the penalty to twenty 8 hour slufts, tlus IS still slgmficant suspensIOn. It IS not difficult to understand why the Umon was of the VIew that the unpoSItIon of dtsclplme m this case was retalIatIon and an effort "to teach a lesson" The Union alleged that the Employer took the very first opportunIty to put Mr Smythe m lus place and that It was not a coinCidence that the gnevor IS the preSident of the I ( , \ 19 local. Addtnonally, Mr Simpson conceded m cross-exanunatIon that he disagreed With the Muustry's acceptance of no repnsals for employee actlVlty dunng the strike. Given all of the eVidence, I am led to the mescapable conclusIOn that the dIscIphne unposed was mappropnately excessive to the pomt that It was also a vIOlatlon of the Back To Work Protocol. In order the bnng the penalty mto complIance With the Back To Work Protocol, It must be reduced. There can be no dispute that strikes can bnng about situations wluch people mtght later regret and would rather forget. I tlunk that m tlus SituatIOn the adjustment had not yet been made back to the normal employer/employee relattonshlp It IS to be remembered that the gnevor's call was WIthm twenty~four hours of the end of the strike and the unposItlon of dlsclplme was meted out a few days later I do not suggest that tlus fact forgIves the crrcumstances, merely that It puts them m prospecttve. Havrng sald that, the gnevor IS still responsible for his acttons which, m my VIew, were reprehensible and Just cause for dtsclplme. I order the twenty 8 hour shtft suspensIOn be replaced WIth a letter ofwarmng sundar to that mcluded m the MirustIy's Apnl 6, 1996, memorandum. He IS to be compensated fully and any semonty lost shall be restored. I Will remam seIZed m the event that there are dtfficulnes unplementmg tlus deCISIOn. I would like to thank Mr Marvy and Mr Bevan for therr effiCIent and professiOnal presentatIon of tlus matter ~ Dated m Toronto, tlus /7 day of June, 1996 ibtlf1t;1 Fe city D Bnggs