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Home My WebLink About2010-2654 et al.Pacheco.18-04-05 Decision Crown 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#2010-2654; 2012-0727; 2013-3214; 2014-0350; 2014-3305; 2014-3846; 2014-4854; 2015-0390; 2015-0494; 2015-0495; 2015-0496; 2015-0913; 2015-0914; 2015-0915; 2015-0916; 2015-1310; 2015-1311; 2015-1312; 2015-1313; 2015-1314; 2015-1315; 2015-1316; 2015-1317; 2015-1318; 2015-1319; 2015-1320; 2015-1321 UNION#2010-0234-0283; 2012-0234-0066; 2013-0234-0359; 2014-0234-0061; 2014-0234-0458; 2014-0234- 0508; 2015-0234-0030; 2015-0234-0058; 2015-0234-0069; 2015-0234-0070; 2015-0234-0071; 2015-0234-0085; 2015-0234-0086; 2015-0234-0087; 2015-0234-0088; 2015-0234-0108; 2015-0234-0109; 2015-0234-0110; 2015-0234-0111; 2015-0234-0112; 2015-0234-0113; 2015-0234-0114; 2015-0234-0115; 2015-0234-0116; 2015-0234-0117; 2015-0234-0118; 2015-0234-0119 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pacheco) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel TELECONFERENCE March 20, 2018 - 2 - Decision [1] This proceeding involves a number of discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. We are now at the point of the cross-examination by the Union of Mr. A. Watson, Manager. The Union has requested disclosure primarily with respect to a number of matters connected to Mr. Watson’s testimony. These disclosure requests were addressed during a conference call held on Tuesday, March 20, 2018, and in subsequent email exchanges which were completed by March 29, 2018. In addressing the production requests, I will reference the List of issues prepared and distributed by Mr. Brewin in advance of the conference call and the subsequent list sent by email dated March 23, 2018, which amends some of the Union’s requests on the List. I will address the issues before me as concisely as possible since the next hearing date will soon be upon us. [2] One of the positions that the Employer has taken in support of denying many of the Union’s production requests is that the request for production is late. In an effort to bring some closure to the production process, the parties agreed that any production requests made after September 6, 2017, would require leave of the Arbitrator. The parties recognize with this agreement that a production request would not be denied simply because it was made after September 6, 2017. In my view, the Arbitrator is obliged to exercise his discretion on disputed production requests by considering all of the relevant factors, including the time of the request. This is the approach I have taken in considering the production requests now before me. I can appreciate that the seemingly never ending production issues are frustrating for both parties. There may be an end in sight given Mr. Brewin’s indication that he is in the process of attempting to complete a list of the remaining Union production requests. [3] In item 1 on the List, the Union requests Occurrence Reports (ORs) relating to an altercation Mr. Powis and Mr. Nelson had in the A & D unit at Maplehurst in the Fall of 2015. The Employer confirms that the OR’s requested do not exist within the Offender Transport Operation (“the OTO”) and that Maplehurst has advised that such ORs do not exist within Maplehurst. The Employer also confirms that the documents requested in - 3 - the following numbered items do not exist within the OTO: item 8, Mr. Watson’s handwritten notes re Mr. Pacheco’s stage 2 meeting on March 2, 2015; item 9, Mr. Watson’s typed notes re the stage 2 meeting referred to in item 8; item 11, Mr. Watson’s typed notes re Mr. Pacheco’s discipline meeting on December 7, 2015; item 17, Mr. Watson’s hand written and typed notes from interactions/meetings re February 13, 2015, conversation notes (17C), the May 26, 2015 OR (17H) and the June 11, 2015 OR (17I). In item 18, the Union requests all correspondence in the possession of the Employer relating to interactions/meetings covered in the documents listed in item 17 or regarding those interactions/meetings. The Employer confirms that there is nothing further in terms of correspondence in relation to the documents listed in item 17. [4] The Employer confirms re item 2 that Ms. Joy Gordon-Adams was the note taker for the five page document the Union received in relation to Mr. Pacheco’s stage 2 meeting on held on March 2, 2015. [5] In items 3, 4, 5, 10, 13 and 14, the Union requests that the Employer produce certain office and cell phone records for specific time periods. Although Mr. Brewin forcefully argued that these phone records are arguably relevant, I am not satisfied that they are arguably relevant to the central issues in dispute. It appears that the matters these phone records are intended to address are collateral to the main issues in dispute. Therefore, I will not direct the Employer to produce them. [6] In item 6, as subsequently amended, the Union requests all of Mr. Watson’s conversation notes having to do with Mr. Powis’ interactions with co-workers and those that are directly or indirectly related to or refer to Mr. Pacheco. Mr. Powis was involved with Mr. Pacheco in two incidents that resulted in suspensions for Mr. Pacheco. The Union takes the position that Mr. Powis’ interactions with other co-workers are arguably relevant to assessing his interaction with Mr. Pacheco during the two disciplinary incidents. It also takes the position that the Employer treated Mr. Pacheco differently for his alleged misconduct in the two incidents with Powis when compared to the way it treated Mr. Powis for his inappropriate interactions with other co-workers. In my view, the request of the Union in the amended item 6 deals with matters which in a general sense are arguably relevant. However, I agree with Mr. Bahal’s submission that the - 4 - request as framed is overly broad. It may be the case that Mr. Watson creates conversation notes about matters that have nothing to do with the inappropriate conduct of employees. Accordingly, I direct the Employer to produce (assuming they exist) Mr. Watson’s conversation notes which deal with Mr. Powis’ negative or inappropriate interactions with co-workers, including any such notes that directly relate to Mr. Pacheco. [7] In item 7, the Union requests a copy of the email and attached memo referred to in Mr. Watson’s February 23, 2015 conversation notes re Mr. Pacheco. In my view, the requested items are arguably relevant and I direct the Employer to produce them. [8] In item 12, the Union requests Mr. Watson’s handwritten notes for Mr. Pacheco’s discipline meeting on December 7, 2015. If these notes exist, I direct the Employer to provide the handwritten notes to the Union, given their arguable relevance. [9] In item 15, the Union requests the Maplehurst main control logbook for January 21, 2016, between 0700-1200 hrs, in order to either establish the time of a Code Blue that day or to link the Code Blue to Mr. Powis leaving the workplace that day. In addressing this production request, I have considered Mr. Watson’s email to Mr. Dykstra dated January 21, 2016, and in particular the notation about “an ongoing code within the institution.” For what it is worth, I do not read the email as suggesting that Mr. Powis left the workplace that day for any reason other than he claimed he was not feeling well. The time of a Code Blue on that day is a collateral issue and not arguably relevant. I therefore will not direct the Employer to produce the Maplehurst main control logbook for January 21, 2016, between 0700-1200 hrs. [10] In item 16, as amended, the Union requests Mr. Watson’s ‘record of verbal transactions’ or conversation records relating to Mr. Pacheco from March 2013 to February 6, 2016. I again agree with Mr. Bahal’s submission that this request is overly broad. The documents that are arguably relevant are those that relate to the specific disciplinary events that were grieved by Mr. Pacheco. Therefore, I direct the Employer to produce Mr. Watson’s ‘record of verbal transactions’ or conversation notes from - 5 - March 2013 to February 6, 2016, relating to the disciplinary events that were grieved by Mr. Pacheco. [11] And finally, in item 17, the Union requests Mr. Watson’s handwritten or typed notes relating to the 10 documents, primarily ORs, that are listed in that item. As I noted in paragraph 3, the Employer has advised that no such notes exist for 17C, 17H and 17I. If Mr. Watson is in possession of notes that relate to the other 7 items listed in item 17, they should be produced on the basis of arguable relevance and I direct the Employer to produce them. Dated at Toronto, Ontario this 5th day of April 2018. “Ken Petryshen” Ken Petryshen, Arbitrator