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HomeMy WebLinkAbout1981-0557.Klonowski.82-07-21ONTAR, ; - CROWN EMPCOYEiS GRIEVANCE SETTLEMENT BOARD IX THE MATTER OF AN AREITRATION Under 'THE CROW EMPLOYEES COLLECTIVE BARGAINING ACT .~ Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (John 'Klonowski) and The Crcwn in Right of Ontario (Ministry of Correctional Services) Griever Employer Before: Prof. R.J. Roberts - c?ice Ciiairman MS . J. Best Member ?lr. E. C'Xelly - !cTembe r For the Grievor: Ms. E.J. Shilton Lennon, Counsel Golden, Levinson For the'Employer: Mr. P. Van Hcrne, Staff Relations Officer ~ :.!icistry of Correctional Services Dates of Hearing: May 20, 1982 June 18, 1382 AWARD I. Summary of Submissions of the Parties This is a discipline case. The grievor was suspended for seven days for intimidation, in that after investigation it was found by the Employer that he attempted "to frighten Ms. Fry [a fellow Correctional Officerl'into retracting or changing her evidence" against a fellow Officer who had been disciplined and who was grieving his discipline before this Board. The Employer contended that the griever's behaviour was one which attracted discipline and.that the seven day suspension was an appropriate disciplinary penalty in the light of the fact that the conduct of the griever was tantamount to engaging in obstruction of justice. The Union contended that on the evidence at the hearing, there was no basis for. concluding that the grievor-attempted to intimidate Ms. Pry as alleged by the Employer. The Union .i; urged that this Board ought to prefer the evidence of the griever over that Ms. Fry because her apparent sensitivity to other officers' feelings about her -- which the Union contended verged on paranoia -- must have coloured and distort- ed her perception of the encounter.with the grievor which .gave rise to the suspension and this arbitration, The Union further argued that if the Board were to agree with its submission that no act of intimidation occurred .; 1 2. but were to conclude that the act of the grievor was one still attracting discipline, it surely would be appropriate to reduce the level-of discipline from what . all agreed was a very serious level, i.e., a seven day suspension. II. Summary of Conclusions Upon due consideration of the evidence and argument of the parties, we conclude that the grievance must be allowed, at least to the extent of reducing the discipline from a seven.day suspension to a three day suspension. While we prefer the evidence of Ms. Fry over that of the grievor, we cannot conclude that the grievor's conduct was motivated by an intention to intimidate Ms. Fry into changing her testimony in the grievance procedure regarding the other Officer. We find that his actua~l intention was two-fold: primarily, to confront Ms. Fry regarding what he viewed as an attempt by her to derail a transfer that the grievor wanted: and,. as a secondary matter, to give the grievor a lesson in the "code of silence" which apparently was observed as a social norm in the subculture of Correctional Officers, and which he believed she had'violated by giving a statement.corroborating evidence of supervision upon which a fellow Officer was subject to' discipline1 While it might be said that the latter purpose comes close to being intimidation, we find that the griever did not, in fact, 6 3. intend the end result of this "lesson" to be a change,-in Ms. Fry's testimony in the pending proceeding. Accordingly, the disciplinary sanction, which was based upon a specific finding of intimidation, cannot stand and must be reduced to a period of three days. III. Credibility Before reviewing in detail the facts relating to this cas,+ we must address the issue of credibility. .The grievor and Ms. Fry were the only persons present during the incident giving rise to the discipline in this case. Both testified. Both gave widely varying versions of what actually happened. In making our findings of fact, we have preferred the evidence of Ms. Fry over that of the griever. We have done so for the following reasons. self-serving. MS. anything, to ga,in First,'theyrFevor's evidence was entirely Fry, on the other hand,had little, if in the present proceedings. Secondly, this Vice-Chairman noted at the hearing that &Is . Fry presented herself as a far more credible witness than did the griever. While Ns. Fry was testifying on cross- examination, this Vice-Chairman noted that she was passing a considerable number of tests of credibility. She was precise. There were no convenient lapses of memory. The grievor, on the other hand, was noted by this Vice-Chairman to 4. have failed on cross-examination the same kinds of tests of credibility. The tone of his answers was edgy. He looked. down a lot, and away from the questioner. He became vague at points, and was not at all straightforward. Thirdly, we have no reason to believe that Ms. Fry's perception of events was distorted to any great degree by supersensitivity or paranoia. While it might be said that Ms. Fry had cause to be on edge and sensitive to the re- actions to her from fellow Officers, there was no evidence to indicate that her ~perception had become distorted to the extreme level that would be required to account for the wide variation between her version of events and that of the grievor. Ms. Fry was capable of functioning as a Correctional Officer despite the pressures upon her. She completed hershift on the night of the events leading to this arbitration. IV. Factual. Background We now turn to the facts as we find them. The Maple- hurst Correctional Centre is a medium security facility located in Milton, Ontario. It houses approximately 415 .e inmates.- Physically, Xaplehurst has four wings which converge at a central hub or "rotunda". The rotunda houses two lounge area where inmates may watch T.V., etc. At the rear of the rotunda is located a secure Control Room housing the necessary logbooks, control boards, telephones, etc. There are 5. glass windows between the Control Room and the rotunda area. There also is a door leading from the rotunda to the Control Room. It is always locked. Some time before the incident involved in this arbitration, Ms. Fry happened, by chance, to witness an occurrence between a fellow Officer, Mr. Boucher, and a supervisor in this Control ,~.. Room. Ms. Fry was ordered to prepare a report of this incident. She did so. The Employer disciplined Mr. Boucher. Mr. Boucher grieved. It was apparent to all that eventually, Ms. Fry would be called before a panel of this Board to give testimony concerning this incident. According to the evidence at the hearing, the act of the grievor in making a report which essentially supported the Employer's case against Mr. Boucher violated a social norm among C?rrectional Officers. This social norm was the "code of silence", which essentially mandated that a Correctional Officer shall not "rat" on a fellow Officer -- to use the vernacular apparently in vogue at Maplehurst. Because the grievor had violated this norm, those Correctional Officers most closely associated with Mr. Boucher began to shun her. This was known at Maplehurst as giving Ms. Fry the "cold treatment". Some went even farther. At the workplace, one officer constantly taunted 6. her with the epithet, "rat". Another threatened her with physical violence if she didn't quit her job. These incidents occurred when the Officers involved could not be observed by anyone else. At home, the grievor received threatening phone calls to the point where she had to have her telephone removed. She also received threatening letters. On one occasion, a brick was thrown through here. livingroom~ window. The grievor was not at Maplehurst when the Boucher incident occurred. He was at Mimico temporarily but, as he testified at the hearing, he heard through the prison grapevine that Ms. Fry had "ratted" on Mr. Boucher. When he returned to Maplehurst. the grievor made further inquiries about Ms. Fry's report on Mr. Boucher. We find that upon confirming the story to his satisfaction, the grievor, who worked reasonably closely with Mr. Boucher, fell into the same. pattern of giving Ms. Fry the "cold treatment" as his associates. He did not, however, go any farther than this. This brings us to the night of July 11, 1981, which .e was the night of the incident leading to this arbitration. At about lo:45 p.m. that night, Ms. Fry's husband drove: her to the front door of the Institution so that she could r~eport for her shift, which began at 11:OO p.m. When Ms. Fry was getting out of the car, she saw the grievor come nut of the front door of the Institution. As he passed Ms. Fry, he said, "Hi! Vi." Because the grievor had been participating in giving Ms. Fry the "cold treatment", she was surprised by this greeting. She stopped and said, "How come you say hi! to me when no one else is around? When other people are around, you ignore me and pretend I don't exist." .~~ The grievor did not respond. He continued on to the driverhs side of the car and began to strike up a friendly conversation with Ms. Fry's husband. Incensed, Xs. Fry walked back to the car. She said to 'her husband, "Leonard, don't speak to him; He is one of those who, are giving me the cold treatment." She and and her husband then exchanged goodbye's, and'Ms'. Fry went on into the Institution. The grievor was upset at being identified to Ms. Fry's husband as one of the people who was giving her trouble over the statement she had made in the Boucher case. Apparent- ly, Mr. Fry was a Correctional Officer of considerable seniority at Mimico. The griever had gotten to know him during his temporary assignment to that Institution. 7. . . 4 8. It seems that the grievor wanted to cultivate friendly relations with Mr. Fry in order to ease the implementation of a transfer to Mimic~o that he was hoping for. The grievor was concerned that Ms. Fry's statement would affect adversely her husband's attitude toward him. He.decided~ to confront Ms. Fry after his-shift ended. At about 11:15 p.m., when he was off duty and when he had no right to be inside the Institution, the grievor caught up to Ms. Fry in one of the halls leading to the Control Room. Ms.~Fry was in the middle of making a clock round. His anger showing, the grievor told Ms. Fry that he wanted to talk her in the Control Room. Ms. Fry said that.she would meet him there after she completed her round. The grievor went tc the Control Room and asked the.Officer on duty to leave him alone for a few moments because he wanted to speak to Ms. Fry. This Officer, believing that the grievor was a Union Steward who wanted to discuss with .j MS. Fry some of her problems regarding the Boucher incident, readily complied. The grievor was not from the Union. tie had;;no right to ask the Officer on duty to leave his post. As it was, he got his way. He and Ms. Fry were alone in the Control Room. AS soon as the door was closed, the grievor began to "tell off" Ms: Fry in an overbearing and belligerent manner. He began justifying-his conduct toi;rd her by elaborating on the 9. code of silence. Shouting and gesturing with his forefinger, the grievor, according to Ms. Fry's testimony, told her "that I had no business informing on one of my fellow officers. He said that even though we had been friends, that I could not expect him to be friends with me after' turning in a fellow officer. He told me you didn't tell management anything. They were a bunch of 'assholes'.'! Having worked himself up, the grievor would not stop to give Ms. Fry a chance to respond. According to her testimony, "He continued on and on, and I started to cry. :.. I said to him that I had had enough.,' I was crying. I asked him to leave me alone. I tried to leave the Control Booth. I had~another clock round coming up. He stood in my way and I had to tell him to get out of my way. I left." The grievor then calmly left the control room and thanked the Control.Officer for his co-operation. There is no doubt that Ms. Fry was severely shaken by this encounter. She also was angry at herself for having given the grievor the satisfaction of making her cry. During the balance of her shift, the grievor nevertheless completed her duties and when she had a moment, she-wrote out a report setting forth the details of her encounter with the grievor. The next morning Ys. Fry brought the incident to the attention of the Union representative in her unlit, Mr. D. McLeod. 10. She also brought it to the attention of the H.S.O. that morning, Mr. 'Harrison. Mr. Harrison called to the Unit another Union Officer, Mr. J. Dick. The latter read the report and the told the grievor that the Union would do something about it. What Mr. Dick meant was that the Union wanted to take the grievor to what was called an in-Union trial. Ms. Fry decided to do so. She wrote a form charging the grievor, b.ut because she used the wrong form, the matter got off to a false start. Then a Union.investigator. told Ms. Fry that it was no use to go ahead with it. At that point, Ms. Fry said to the Union officials that she would be willingly to meet with the grievor if he would apologize and that would be the end of it. Apparently, there was not much chance that the grievor was prepared to do this. The effor:ts of the Union to settle matters ended. Meanwhile, the Employer was making its own investigation. Pending this investigation, C4r. A. Roberts, the Superintendent of Maplehurst, had supended the griever with pay for up to three days. During this investigation, Mr. Roberts interviewed a number of witnesses, including 14s. Fry's husband.- He then informed the grievor in writing of the allegation, against him and held a meeting with the grievor in order to decide on all the evidence whether there was, in fact, a case of intimidation. After this meeting, Mr. Roberts decided that 11. such a case did exist. In the light of this, he concluded that the grievor should be suspended without pay for seven days. At the hearing, Mr. Roberts agreed that thiswasnot a light penalty. He said that he imposed such a serious penalty because he felt that the grievor's actions were tantamount 'co an obstruction of justice, in that he interfered with :, a witness in a pending proceeding. He said that he was extremely concerned that the grievor was trying to get Ms. Fry to change her-story in an incident which already ,. .':. was subject to a grievance procedure. He also stated that he considered the effect that the penalty would have on the griever, i.e., to demonstrate to him and others that attempts to influence witnesses would not be tolerated. The grievor grieved this suspension, and this arbitration followed in due course. V. Consideration of Issues The first issue raised by the above facts is whether the grievor's conduct constituted an attempt to intimidate a witness into changing her story in a pending arbitration proceeding. This, after all, was the basis for imposing .* a seven day suspension. We conclude that the facts as we have found them do not bear out this characterization in at least one significant respect: there was no indication : . ‘. 12. that the grievor expected the end result of his "lesson" in the code of silence to be a change in Ms. Fry's testimony in the pending proceeding. The facts tend to suggest that the main purpose of the meeting in the Control Room on the night of July 11th was to give the grievor a chance to confront MS. Fry about her comments to her husband about the grievor. It seems that it only was in the context of attempting to justify his behaviour toward Ms. Fry that the grievor denounced Ms. Fry's conduct in making a statement regarding Boucher and extolled to her the virtues of adhering to the code of silence. There was no evidence to suggest that the grievor told Ms. Fry that she'd better change her testimony. We can appreciate that in the context of the campaign of harassment which was being directed against Ms. Fry at the time, Mr. koberts believed that the natural result of ,,. such activities might well be a change in Ms. Fry's testimony. We can understand that in such cases a harsh response might be called for in order to preclude the mounting of additional~ pressure upon an individual who dared to challenge a group nom. .If the griever had been one of the Officers involved in some of the other incidents of harassment (other than the cold &e&sent), this might have beer? appropriate. The grievor, however, was not. Ms. Fry even indicated.in her testimony that she would have s-- ottled for an apology from the grievor. The seven day suspension cannot stand. What penalty. then, is appropriate? There seems to be little doubt that the conduct of the grievor was deplorable. He broke a number of.rules. He had no right to be in the area where Ms. Fry was doing her clock round. He had no right to be in the Control Room. He had no right to relieve the Control Officer. He had no right to abuse'and upset a fellow Officer who was on duty and whose ability to :.... continue performing ,her duties might have been affected if she had less strength of character than she obviously 13. possessed. This could have impeded the capacity of the Employer to carry out its functions during a crucial part of the day when the inmates were being settled down for the night, etc. We think that such behaviour by the grievor ought to attract more serious discipline then a mere letter of warning or even a one day suspension. Accordingly, we impose a three day suspension. VI. Conclusion The grievance is allowed in part. ,The suspension is reduced from seven days to three days. This Board will remain seised of the matter pending implementation of this Award. DATED AT London, Ontario this 2lstday of July , 1982. 14. R.J. Roberts, Vice-Chairman "I dissent" - (per attached) J:Best - Member E. O’Relly - mb~ DISSENT I must dissent from the majority award. I cannot agree with the Chairman's characterization of Mr. Klonowski while giving evidence. Mr. Klonowski's actions did not indicate to me that he was telling anything less than the truth. He was a credible witness and maintained his credibility during cross examination. While Mrs. Fry also presented herself as a forthright witness,. I have some concern that her perception of the events that took place on July 11, 1081 is as clear as it might be. There is no doubt that Mrs. Fry was subject to a lot of harassment and under a great deal of pressure following the Boucher incident. Mrs. Fry testified that when she left the control room after speaking with Mr. Klonowski, that Gerald Lamarche, another correctional officer, asked her what had happened to make her so upset. She said she told Mr. Lamarche the problem. Mrs. Fry also testified that when she met Mr. Klonowski in the Rotunda, he was visibly angry. We heard evidence from Mr. Lamarche. !"lr. Lamarche was the officer in charge of the control room that evening. It was Mr. Lamarche who left the control room to accommodateIMrs. Fry and Mr. Klonowski. Mr. Lamarche testified that when Mr. Klonowski approached him to ask,him to leave the control room, Mr. Kloncwski was very calm. He said he thought Mr. Klonowski was from the union. . . . . . . 2 Mr. Lamarche also testified that he did not ask Mrs. Fry anything about the incident in the control room because she appeared too upset. Mr. Lamarche's written report, made on July 12, 1981, while the events were fresh in his mind, confirms his evidence. There is no evidence that the grievor broke any rules or that he shouldn't have been on the premises after his shift. According to,the grievor's uncontradicted evidence, it appears to be common practice for off 'duty officers to be in the complex and that permission is not required to enter the control room. The fact that IYr. Lamarche allowed Mr. Klonowski into the control room without question would seem to substantiate this. On the basis of all of the evidence, I cannot agree that Mr. Klonowski did anything wrong nor can I accept Mrs. Fry as a more credible witness. I don't believe there is cause for any d ,iscipline in this case.