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HomeMy WebLinkAbout1982-0063.Hamblin.82-08-0353,i82 68/82 IN TEE MATTER OF AN ARRITRATION Under TH,c CROWN EMPLOYEES COLLECTIVE BAZGAINING ACT Before THE GRIEVANCE SETTLEMENT EOARD Between: For the Grievor: For.the Employer: .’ OPSEU (Robert Ramblin) Griever -,And - 'i'he Crown in Right of Ontario (Xinistry of Correctional Services) Employer Prof. J.W. Samuels' Mr. 'TT; TrB%es Yr . Vi‘. Evans Vice C"alrman Member :lember Ms. J. hliko Grievance/Classification Officer Ontario Public Service Employees i:nion Mr. c.a. Preston Deputy Superintendent Millbrook Correctional Centre ~. Slinistry of Correctional Services !Jr . J. \Chibhs Regional Personnel :\dministrntor !linistry of Correctional Services - i’ -2- INTRODUCTION We are dealing~with two grievances concerning two memoranda placed in the grievor's emplopent file. The Employer argues that these communications are merely letters of counsel, not matters of discipline, and therefore the grievances are not properly before thisBoard. The matters are not arbitrable. On the other hand, 'the Union argues that both communications are disciplinary, that there is no just cause for either, and hence the letters should be removed from the grievor's file. At our hearing, the Board dealt with the Employer's preliminary objection of inarbitrability by ruling that we needed to hear evidence concerning the matters in question in order to understand.the meaning of the words used in the two communications. Only when we understood the purport of the memoranda could we make a judgment concerning their nature. Thus, we heard argument con- cerning arbitrability, and evidence and brief argument concerning the substantive issues as well. ~-A+ .~ -_ .- .I... ,-. 'TWO incidents.are involved here, and it would be useful to look at each,one separately. But first it should be said that the grievor has been employed at the Millbrook Correctional Centre as a Correctional Officer since July 1979. In August 1980, he was promoted to the working level of C.O. 2. Now to the incidents. , .- -3- THE "KEY" INCIDENT The keys to the institution are ~kept in the Central Control Tower, and are obtained by officers by filling out a chit. The security and safety of the officers and prisoners depends on proper procedure concerning the taking and return of keys. In December 1980, a memorandum was issued to all staff by Mr. W.K. . Drury, then Senior Assistant Superintendent, concerning this procedure. This memorandum was posted on the staff bulletin board, and was there at the time of the incident involving the grievor. It reads: INSTITUTION KEYS It has been brought to my attention that in recent weeks staff have been negligent in returning their keys to the Officer in Central Control. This has resulted in several phone calls to contact the staff member requesting they return the key. Please be advised that the responsibility rests with all staff to return their keys to Central Control and pick up their key chit. If this type of conduct continues Andy staff fail to turn their keys in at the conclusion of'their work day, it may result in displinary (&j action. .q. -- .,- I : One day in October 1980 (the precise date was not established at our hearing, but this' is not,relevant), the, grievor reported for duty on the 3-11 shift, and drew the "fire" key which regulates .the fire alarms in his'area. At the end of tha shift he unwittingly left the key in his pocket and did not discover it until the next morning when he woke up. He phoned in immediately to report r that he had the key and was told to return it then and there. He did so. It was about 8:30 AM. L- -4- Winen the matter was discussed by the management of the institution, the SuperintendeM asked Mr. Drury to. counsel the grievor concerning the key procedure, and to put a note about this in the grievor's file. This was the first occasion on which the procedure had been violated,since the posted memorandum went up. Previous to the memorandum, violations were dealt with verbally, and no letters went into the employment files. The grievor was counselled, and the following note from Mr. Drury went into his file: FAILURE TO COMPLY WITH REGULATIONS Thisis to confirm our conversation in my office on Tuesday, Oct.'20/81 at which time I counselled you in regards ,to your failure to ensure your keys were turned into Central Control Tower prior to your leaving the institution. As an employee with more than two years experience you should be well aware of regulations in regards to keys. It is hoped you have benefited from this counselling and that there will be no further incidents of this nature. Further incidents may result in disciplinary action. This is the note which is grieved. ~.q.-'.- .-... ~~.. - We note also that, in July 1982, the;grievor was appraised. The appraisal document rates him as "Satisfac'tory- except in the following important respects" and then refers to his attendance only. On the back of the form, under "Summary Remarks", the following note appears: On O'ctober 21/81, he was counselled in regards to take a key off the property. On October 29/81 it was-necessary to counsel him for mis:handling of -j- his issue of I.C.I.T. uniform. He was again counse regarding I~.C.I.T. equipment (boots) June 30/82 (by Iled memo). The grievor received his regular salary increase. Mr . Drury testified that others have been counsel led and have received notes similar to the one given the qrievor since the qrievor was counselled. This includes counselling and notes to Mr. Drury's supervisors. THE "COVERALLS" INCIDENT The grievor is a member of the.Institutional Crisis Intervention Team LICIT). As such, he is issued with-a special set of equipment, for which he is responsible. This includes several pairs of coveralls. The equipment is inspected at the monthly training sessions. In late July 1981, the-grievor took a pafr of coveralls~ to the institution's laundry. Shortly thereafter he was off for ', ttiree-weeks on .cG$pensation and -returned in late August. He forgot about the coveralls at the laundry, and did,.not recall them until his next training session in October, when they were missing. He then remembered that they had been taken to the laundry and went in search of them. The laundry could not find them. The qrievor, was asked to make a report on their loss, and he was again counselled by,Mr. Drury, with a memorand&m recording the counselling. It reads: , - . - 6 - : FAILURE TO COMPLY WITH REGULATIONS. This is to confirm our conversation in my office on Thursday, Oct. 29/81 in the presence of G.B. Preston, Deputy Superintendent. During the meeting you were counselled in regards to your failure to account for the I.C.I.T. equipment issued to you. It .is your responsibility to maintain and control all items of equipment issued to you. As a Correctional Officer with more than two years experience you should be well aware of your responsi- bilities in this area, and it is hopedyouhave bene- fited from this counsellinq. Further incidents of this type may result in discipli- nary action. In later correspondence, the Employer has made it clear that it is not faulting the grievorforthe loss of the. coveralls, abut rather for his failure to look for them for two months. A similar note was given to another member of the ICIT who lost some of his kit. CONCERNING ARBITRABILITY .-4q .:~-. - .- ,<..~ ?, We come now to the preliminary objection concerning arbitrability. Were these disciplinary letters? Or were they merely "letters of counsellinq or direction"? The Union argues that the Employer should not be,perniitted to escape the scrutiny of this Board by simply labelling the communications as "letters of counselling". In our view,' there is no better generai statement on the nature of discipline than the language in Brown and Beatty, Canadian - 7 - Labour Arbitation (19771, at pages 365-6: It is generally recognized that,the essence of a disciplinary sanction lies in its negative impact on an employee's work record. As such, the char- acterization of such traditional sanctions as dismissal and suspension as being disciplinary in nature has never been questioned. Further, from the reported awards, it would appear that arbitrators have characterized written warnings as the least severe of the traditional forms of industrial sanction available to the employer. However, and although there is no doubt that the discharge, suspension or warning of an employee is a legitimate and proper exercise of the employer's disciplinary authority, an issue may arise as to whether any particular, warning is disciplinable in nature. It follows from .what arbitrators conceive to be the essence of dis- ciplinary sanctions that a written warning, which forms part of the griever's employment record, and which may have a prejudicial effect on his position in future grievance proceedings, will likely be regarded as being disciplinary in nature. Where, however, the written warning forms no part of the- employee's record, or where the warning merely indi- cates disciplinary.action might be taken in 'he future, and implicitly, therefore, is not being taken at the present, arbitrators have ruled that such notations are not disciplinary. in nature. Similarly, it has been held, in the absence of some provision in the agreement, that oral warnings or reprimands are generally not to,be regarded as disciplinary inasmuch as they are not documented and are intended~to induce conformity to acceptable behaviour in the future and that to hold otherwise would clog the grievance process with the resolution of relatively inconsequential infractions. However, should evidence be adduced that such ve@al~warnings were intended to form part of an employee's record, they may be characterized.as being disciplinary in nature. The matter has been considered by this Board. The.first significant decision appears to be Cloutier, 20/76, and this Board's approach is well put in N&, 108/77, at pages 4~5: As the.Cloutier case and the cases cited therein make clear, one can not characterize every communication from an employer to an employee as disciplinary action. Only if the warning will have a prejudicral effect on ~the employee's position in future grievance proceedings, - -a- in the sense that it i.s being used to build up a record against the employee, can it be characterized as disciplinary action. To conclude otherwise would be to allow an employee to grieve any communication which he believed~to be unfounded, with unfortunate results for the grievance procedure and for the employer trying to give guidance to an employee .without engaging in formal disciplinary action. As Professor Beatty stated in Cloutier with regard to criticisms that might have adverse effects in the future - "That is to say if this Board were to accept any.other construction of s.17(2) (b), it would ensure that every letter or memorandum sent by an employer to an employee, which commented critically on the latter's work per- formance, could be made the subject of grievance to be brought before this Board. As a consequence, such a construction, by bringing anticipated but not yet realized decisions of the employer before this Board, could well result in the grievance procedure being clogged with, and this Board's attention being diverted to, matters which are at most o-f marginal significance and which may, in the final analysis, be on~ly of hypo- thetical interest to the parties:' Recently, this Board carried.the matter further in Zuibrycki, 425/81, wherein it is said (at pages 4-6): The distinction between a warning of future action and present action is a very difficult,one. It is common ground between the parties in this matter that the present Grievor has a history of being rather diliger@in-protecting-his ~knterests through invoking the grievance ~procedure. If the test was whether or not the le'tter was being used to build up a record against an Bmployee it seems to us th,at it wo.uld follow that every letter which comments unfavourably upon the actions of the Employee might at some time in the future, particularly in a culminating incident case, become part of the relevant record. Thus in this case if the Grievor were to be dismissed for Bering away from the work place, by the virtue of the doctrine of cul- minating incident this letter or evidence about the incident would become quite relevant as part of the past, record. If suspension for similar conduct were to occ& it is arguable that the letter would be relevant although perhaps not admissible, as similar act evidence. In the private sector the matter of .lesser forms'of. discipline is dealt with in a number of ways; 'In'some Agreements only formal~notices of discipline are allowed to go into the file and these slips .are considered as I-. -3- : formal discipline and can be subject to grievance. Where there are regular procedures for appraisal and where these are placed in the file, the Employee is normally given an opportunity to respond to any of the allegations contained in these documents. such is indeed the practice in the Ontario Public Service and a statutory right of grievance exists with respect to these documents. Unfortunately ~there is not the precision in these Agreements that sometimes exists in Agreements in the private sector. This leaves an Employee in a rather difficult situation. If he or she knows of a document which isuncomplimentary and which is going into the file, other than an appraisal, and does not grieve,its inclusion in the file, he or she may be later met with, the argument that its contents tiereaccepted. If on the other hand the Employee grieves, he or she may be met by an argument that there is no jurisdiction in the Board to deal with the matter because it was not disci- plinary. What is an Employee to do? In the private sector,the concept of progressive disci- pline is seen as very significant, particularly in the professional field. In general verbal warnings have not been found to beg disciplinary but note Re Owen Sound General Marine Hospital, 16 L.A.C. (2d) 11 (Abbott 1977) I while final warnings (contra Cloutier) are normally considered to be disciplinary. In the'context of final warnings it was suggested in Atherton (P.S. 876/76) that before a person could be dismissed for failure to meet the requirements of the position there would have to be an explicit warning, preferably written, given to that Employee. This seems to suggest that in the public service an explicit warning that future discipline may n be seen as.part Qf the system of progressive ZT&%& It is difficult to reconcile this case with that of Cloutier. It seems to us that each written document must be considered in the light of what it states and in the light of the relationship between the parties prior to its receipt. To try to distinguish between a,letter which raises the possibility of future, action (nondis- ciplinary) and one which is a final warning or which is used to build up a record against the Employee (disci- plinary) seems to be an exercise in futility. As a- matter of policy we feel that unless specific action is taken against the Employee at the time of the letter, the more appropriate remedy for the Employee is for he or she-to respond by way of a letter setting oust his version of the facts and requesting that the letter be included in his personnel file. In this way at least the Zheor: that the Employee has accepted the allegations may be negatived in subsequent proceedings. - 10 - In this case, Professor Traves dissented, setting out his view as follows: In my opinion there is no doubt that a warning letter of the sort issued to the griever certainly could be used in a future grievance as evidence of past mis- conduct. The difficulty, of course, lies in deter- mining if the current warning will lead to future disciplinary action. The majoritv in this case regard this task as "an exercise in futility". In Cloutier, the 3oard worried that the exercise "could well result in the grievance procedure being clogged with, and this Board's attention being diverted to, matters which are at most of marginal significance and which may, in the final analysis, be only of hyoo- thetical interest to the parties." I am sensit:lve to both of these.concerns, but they do not strike me as valid grounds. to'bar grievors from their common law right to establish clearly the facts in matters under dispute. I am further persuaded that there is in fact a practical means to escape the difficulties envisaged in Cloutier and by my colleagues in this.case. The analysis and conclusions in Re Kimberly-Clark of Canada Ltd. (1972) 1 L.A.C. (2d) 44 (Lysyk) provide the most useful point of departure.' "At the hearing in this matter, counsel for the company took the position that the card merely dodumented a discussion with the grievor, that it was intended to draw the grievor's attention to the company's concern overhis job performance and thereby provide him with incentive to improve that performance, and that the card was not drawn up for the purpose.of "building a record" against the grievor. - .'.2q . . . .- .^ ~, ~. -. To the-extent-that any "warning" is disciplinary, of course, the sanction inflicted upon the employ@aeso disciplined is not immediate, but potential. employee concerned will~have in mind that if a disci- plinary warning is not made the.subject of a successful grievance, the warning will go to "build a record" that may be used against him at a later time should he sub- sequently be dismissed or suspended or subjected to some other form of discipline. A warning can fairly,be characterized as a disciplinary warning, that is to say, when it may have a prejudicial effect upon the employees' position in future grievance proceedings to contest a dismissal or suspension or other disciplinary action.. On the other hand, company personnel records might weli include a memorandum of some sort containing unflattering remarks about an employee, but which could not be viewed as a disciplinary warning in the sense~of laying the basis for, or supporting, other disciplinary.neasure at -- - 11 - a later date - either because of the nature of the document, or because the "warning" was not brought to to the attention of the employee in such a Gay as to afford him the opportunity of challenging it through the grievance procedure, or because it 'is clear for some other reason that the employee would not be prejudiced in any future proceedings by having failed to grieve the "warning" immediately following its issuance.... On the basic issue, however - that is, whether or not the card of January 7, 1972, can be taken to consti- tute a disciplinary measure - we are not confined to the face of the ~document. As suggested above, in our view the critical feature distinguishing a warning which can properly be characterized as disciplinary from other (non-grievable) expressions of employer disapproval is that in the case, of the former an employee who fails to bring a grievance may be prejudiced in future proceedings of a disciplinary nature. In the case at hand, as we understand it, the company has clearly taken the position that the card of January 7, . 1972, was not intended to be disciplinary in this sense of establishing a ~basis for futher (sic) action. Bv so characterizing the card, and unequivocallv representing it as a non-disciplinary communication, we are of the opinion that the .company would be estopped from sub:- .?sp=ntly te@_e.%!!~t_._in~~ any. future proceedings of. .a discip&nary nature that might be taken against the grG$Jor". ___~. .__..._ __~.__......._ .__-.-- As the underlined passage indicates, -the arbitrator in Re Kimberly-Clark clearly placed the onus on the Employer G distinguish between qrievable warnings and non-disciplinary communications which the Employer would be estopped from' using-&&subsequent proceedings of a disciplinary nature.. If this 'standard was applied in this grievance, as I believe it should, the Employer would have.to indicate at the outset if the warning letter sent to the qrievor was a non-disciplinary communication, which it could not call in evidence in a future disciplina,? proceeding, or if the letter sent was a disciplinary warning, in which case, it would be grievable. It seems to me that the Emplover cannot have it both ways, that is, "a warning letter is not disciplinary until I say-it is at a future disciplinarl proceeding." The remedv suggested by the majority in this case, that the Grie'vor file a.letter with the Employer setting out <he facts of the matter as he sees them, while worthy, does notappear to ,me to address the real problems raised by cases of this sort. Should a future disciplinary action arise based in part on matters pertaining to the incidents described in the Employer's letter to the Griever, . i - 12 - the Board may be subtly influenced by,an accumulation of such exchanges of letters (i.e., where there is smoke, there must be fire), or they may not be able. to reconstruct the true facts of the incident because a significant amount of time Mayo have passed, memories may have faded, or some of the principals in the events mentioned-may no longer be available to testify. Under these circumstances, I must insist on the Board's right to retain potential jurisdiction in this case. in the event that the Employer wishes to maintain the non- disciplinary, and hence non-grievable, character of its warning letter, then, of course, following Cloutier and E, the Board would have no, jurisdiction; but at the same time, following Re Kimberly-Clark, the Employer would be estopped from calling this letter in evidence at a future disciplinary hearing. In the event that the Employer wished to preserve its right to use the warning letter in a future action, then once again the Board could follow Cloutier and Niak and hear the case. Now let us pull these threads together. while the expressions of view are somewhat disparate, the best view seems to be as follows: a. The character of a communication cannot bye judged simply by the title it is given by the Employer. The critical consideration is.the substantive effect of the letter or note. b; A d'sciplinary communication is one which is' intended t6& - .~. nosh or chastise the employee for failure to perform properly. In a system of progressive disci- pline, one will often see a very minor disciplinary response to a failure, followed by progressively more severe responses to the same or similar failures of performance. Thus, the first disciplinary action, though very mild, has significance beyond the immediate purpose, because more severe discipline can be built~ on the first for further such failures of performance. C. A.non-disciplinary communication may counsel or recommend certain conduct to the employee, but it has mo significance for future discipline. In other words, a non-disciplinary communicatioacannot E)re- judice the employee.' -13- Turning to the communications involved in our case, they do appear to be disciplinary in nature. The grievor is being chastised for improper conduct. The references at the end of the t'vlo notes to "disciplinary action" in the.future refer.to more serious discipline, such as suspension or discharge. If there were further similar acts by the grievor, it is almost certain .that the Employer would refer to the notes in the grievor's file to sustain its disciplinary action. And the penalty could be more severe because this would be a second offence, rather than aafirst. The communications attest to the first offence. In'this situation, it is important that the grievor have the .right to challenge the chastisement meted out to him. Thus, we find that the grievances.are arbitrable. The issue now becomes the just cause for the discipline. CONCLUSION In bothqncideiits, th'e.~grie?or's failure of performance concerned a matter of safety and security at the institution. The key procedure is vital to the well-running of the correctional centre. And, it is important that a specially-trained member of the,crisis team be ready with his equipment when needed. The grievor has no good reason for his failure to return the key, or for his forgetfulness in'not checking for his coveralls. In these circumstances, the Employer!s.response seems perfectly justifiable, and manifestly reasonable. Therefore, both ,grievances are denied. ri - 14 - Before closing, we should comment on the significance of this case. One of the primary reasons cited for denying the arbitrability of many communications is that:if they were grievable the grievance procedure would be clogged with periph,eral matters. The check on this clogging of the grievance procedure, however, is the possibility that the communications will be found to.be dis- ciplinary and with just cause. This may be more prejudicial to an employee than an unchallenged communication which the employer chooses to characterize as non-disciplinary. Bearing this in mind, an employee may be reluctant-to challenge communications which relate to minor matters. It may be better to simply file a letter of protest with the Employer. For this 'reason, we question I the argument that the grievance procedure will be clogged if this Board errs on the side of permitting grievances against'communi- cations whose disciplinary nature is borderline. Done at London, Ontario, this !i . Evans, Yember i 1. 2. 3. 4. r 3. 6. 7. 8. 9. 10. 11. 12. 13. - 1s - EXHIBITS Grievance Form, GSB 68/82, and attachments Grievance Form) GSB 63/82, and attachm,ents Step 1 response to both Note to grievor, re 68/82~ Note to griever, re 63/82 Performance Appraisal Memorandum re "Institution Keys" I.C.I.T. equipment list Training report, July' 27, 1981 Training report, October 7, 1981 Report of Mr. R.C. Coupland re coveralls Report of Mr. Hamblin re coveralls Note to Mr. R. Hamblin re counsellinq