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HomeMy WebLinkAbout1982-0292.Burns.83-07-27THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMZNT BOARD Between: Before: For the Griever: For the Zmplover: Hearing: OTSEU (Patrick Burns) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer E..B. Jolliffe, Q-C. Vice Chairman H. Simon Member A. G. Stapleton Member M. Mercer-DeSantis Grievance Officer Ontario Public Service Employees Union J. F. Benedict Nanager , Staff Relations Personnel Branch Xinistry of Correctional Services April 14, 1983 I - 2 - DECISION In this case the griever has complained that he was "unreasonably and capriciously" given a certain order by a member of the manaqement team. He complied with the order at once and presentedaqrievance on the same day. He claims that in the circumstances the order constituted a disciplinary warning. The employer denies that the qrievor was disciplined and objects that the grrevance 1s not arbltrable. At the hearing. that Issue was reserved for our consideration. On the admitted facts It IS doubtful tha: the matter could be arbitrated under Sections 18 and 19 bf The Crown Employees Collective Bargaining Act. Subsection (2) of the Section 18 is as follows: (2) In addition to any other rights of grievance urder a collective agreement. an employee claiming, a) that his pxruon has keen unproperiy classified; b) that t-e has been appraised contrary to the governing prrnclples and standards: cr c) that he has been dlsclpluwd or dismissed or suspended from hs employment *athout just cause, nuy processsuchmatter in accordance with the grievance pro- cedure provided in the collective agreement, ard failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable urder section 19. Whether the employee was "disciplined" within the meaning of S. 18(2) need not be decided because Article 27 .of the applicable collective agreement is couched in much broader langauge. The first four paragraphs in Article 27 are;as follows: 27.1 It is the intent of this Agreement to adjust as quickly as possible qy osmplaints or differences between the parties arising from the interpretation, application,. administration or alleged contravention of this .Qreement:, includ+ng aq question as to whether a matter is arbitrable. 27.2.1 An employee d-10 believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of thz complaint or difference. 27.2.2 If any complaint or.difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion it may ba processed within an additional ten (10) days in.the following manner: STAGE ONE 27.3.1 'Ihe empldyee may file a grievance in writing with his sqernsor. 'Ilx suprvisor shall give the griever his decision ti writing s&thin seven (7) days of the s&mission of the grievance. Another paragraph must be quoted: - 4 - 27.4 If the qrievor is not satisfied with the decision of the Deputy Moister or his designee or if he does not receive the decision within the specified txma the qrievor may apply to the Grievance Settlement Board for a bearing of the grievance within fifteen (IS) days of the date he received the decision or within fift- een (151 days of the specified ume limit for receiving the decision. There is no doubt that Mr. Burns had a "complaint or a difference" with management with-n the meaning of Article 27. We conclude that the matter is arbltrable. Whether the complaint is well-founded is of courseanother matter. The qrievor has been employed as a Correctional Officer at the Toronto Jail (commonly known as the Don Jail) since 1976. He is also Vice-Presldent of OPSEIJ Local 530. Active in the Union from 1977, it was his habit to wear an OPSEU pin attached to his tie and shirt, both of which are issued by the Ministry as part of an officer*5 un;form. On February 23, i982, Superintendent I.D. Starkie issued the follcwinq memorandum, Exhibit 3 (entirely in capital letters) addressed to "all uniformed correctional officers" at the Con Jai;. -5- UNIMRM DRESS @DDE EFFECTIVE UPON RECEIPT OF ‘TTiIS DIRECTIVE WHICH IS BEING CIRCULATED BY WAY OF THE DISTRIBUTION OF THE FEBRUARY 25, 1982, PAY CHEQUE, 'IHE FOLLOWING UNIFORM DRESS CODE WILL APPLY: j ISSUE UNIFORM, SEASONAL VARIATIONS EXCEPTED, IS 'ID BE kO)RN IN ITS ENTIRETY, AND MUST N3T INCLUDE VARIOUS COMBINATIONS OF CIVILIAN CLGTHING AND UNIFORM ISSUE, UNLESS A WRITIEN EXEMPTION HAS BEEN OBTAIhED FROM THE ASSISTANT SUPERINIENDENI', CORRECTIONS. IT IS PEQUIRED THAT STAFF WILL REPORT FOR DUTY WITH THEIR CUYTHING APPROPRIATELY PRESSED, SHOES CLEANED, AND TIES DEVOID OF JEWELRY OR ITEMS WHICH .ARE PURELY DECORATIVE. SWEATERS, PULulVERS, CR CARDImS, IF.Cf+ZSEN 'It) SUPPLEMENT LNIFORM ISSUE, MUST BE GREY IN COMLR. LOCKERS ARE PROVIDED FOR THE CONVENIENCE OF STAFF WHO WISH 'x) JOURNEY TO AND FROM HC,ME IN THEIR CIVILIAN CLOIHING. AND CHANGE INIU THEIR UNIFORM ISSLE FOR WTY AT THE INSTI'KiTION. IT IS EMPHASIZED TPAT COMBINATIONS OF CIVILIAN AND UNIFIXM ISSUE CLDTKING MUST NC'T BE WORN. EMPLOYEES HAVING QUESl’IONS CONCERNING THIS DIRECTIVE SHOULD APPROACH THEIR SUPERVISOR. The griever acknowledges that he saw the above memor- andum at the time, but he continued wearing the OPSEU tie-pin, believing it was particularly appropriate for him to be identifiable in his capacity as a local union officer. On the afternoon, of March 12 Mr. Burns (a CO.21 was on duty in unit. 3C. The shift supervisor, Mr. James Brown (who is classified 0:415, a management 'level) visited the unit and signed the log-book. It 'is agreed that Mr. Brown ordered -6- the qrievor to remove the tie-pin, that he promptly complied and that he said he would qrleve against the brder. ?lr. Burns' grievance, dated Narch 12, was as follows: 'l&it I ms unreasonably and capriciouslyorderedby Lt. Brown to remove one tiny tie pin from my tie and that such unreasonableness adversely affects staff-morale and is antrary to the Dress Cede Cirectlve is& by the sperintendent and tt-e spirit of the Collective Pqreenrant. As a remedy, the qrievor requested: ?hat such nltpickinq enforcement of lnstltutional directives cease and desist and rrore constructive approaches to staff be taken in future and I be able to wear my tie pin. The grievance seems to have brouqht the matter to a head. only three days later, on March 15, Superintendent Starkie issued another "Uniform Dress Code" in more precise terms : FURTHER TO THE DIRECTIVE DATED FESRUARY 23, 1982, CONCERNING THE ABOVE GOTED StiSJECT XATTER, PLEASE BE ADVISED AS .cOLLOWS: 1) ITEMS WHICH .ARE SOT MINISTRY ISStiE WILL NOT BE WORN AS A PART OF THE UNIFORM: I.E. TIE PINS OR LdPEL BUTTONS, (CURRENT ?IINISTRY ISSUE CONSISTS OF A ST. JOHN'S - 7 - AMBULANCE BiiDGE FOR THOSE IN POSSESSION OF A ST. JOHN'S CERTIFICATE, AND RANK INSIGNIA DENOTING CORRECTIONAL OFFICER 3, OM-15, ETC.). 2) OFFICERS ASSIGNED TO POSTS WHERE CONTACT WITH THE PUBLIC OCCURS, I.E. ~FRONT DEST, HOSPITAL ESCORT, ETC.;,'WILL WEAR THEIR JACKET. THE ADOPTATION OF A UNIFORM DRESS CODE, AND PRO- MOTING PRIDE IN APPEARANCE, IS IMPORTANT. THESE AND OTHER ISSUES CAN BE DISCUSSED AT THE UPCOMING GENERAL i STAFF MEETING. By letter of April 29, Regional Director G.C. Simmons confirmed. an understanding that a response-to Mr. Burns' grievance would be delayed pending a meeting of the Ministry Clothing Commit- tee. That meeting was duly held on May 6 and. the minutes thereof are in evidence as Exhibit 6. Mr . Starkie was Chairman, four others represented the Ministry, one represented the Ministry'of Government Services and one ~was an OPSEU official. The meeting made a number of recommendations relating to uniforms, one of which was recorded as follows: After much discussion, the Corrnnittee unanimously endorse&the following r+comme~dation --- that a.Mir.istry .&de pAicy is recommended to permit staff to wear one of the following tie or lapel pins:~ Reccgnized Service Club: i.e. Lions, Rotary, Kiwanis, etc., Canadian L&on pin, Canadian Flag pin, Province of Chtario pin, 0.P.S.E.U pin. 'Ike wearirq of one of the foregoing wtild bs in addition to the St. John's Amtilance pin, Ontario Gdvernment menty-five Year Service pin, Rank Insignia, Military Campaign Ribhxs. _’ ;... . ‘.. That recommendation was not accepted by senior officials of the Mlnlstry. At the time Mr. John Main was the Central Region's Director of Institutional Programs. He has testified that the Clothing Committee's formula was discussed with other Regional Directors and the Executive Director. They unanimously decided on a different approach. The result was Exhibit 9, a Uniforn Dress Code addressed to Superintendents on June 30, followed by Exhibit 10 of July 5, an amendment to the Dress Code, which Superintendent Starkie issued to "All Uniformed Correctional Officers" at the Toronto Jail. It was as follows: FURTHER lU DIRECTIVES GATED rFEBRUARY 23 AND MARCH 15, 1982, PLEASE BE ADVISED THAT I'l-ZMl IS AXEhDED 'IO F'.EAD AS FOLLOWS: EFFECTIVE IMMEDIATELY, THE ONLY PINS OR BADC?S THAT WILL BE WORN WITt-! THE LXIFORH AK: 1) RANK IUIG.4IA. 2) ST. JCHN'S AKBIJLAXCS BADGE, 3) ONTARIO PLBLIC SERVICE CX!ART?X CEhlXRY CLlrB PIN. 4) EARED MILITARY MEDAL RIBBOEjS Ah9 DECDRATlOh'S, UI'fBX PISS, ml-K?FiSTAXXNG ?F;EIR CRICIN, IVILL .%DT BE WORN WI?H l?iE LNIFCRM WITHOLT WE WRITTEN AU%ORIZATION OF l?iE EXECLTIVE DIREC'IQR, NSTI'WXONS DIVISION. The same informatIon was conveyed by Mr. Starkie to Mr. Burns personally in a letter also dated July 5, Exhibit 8, - 9 - in which Mr. Starkie concluded by saying that "the foregoing represents the offic ial response to your grievance." '.. In his testimony, Mr. Main said that the wearing of pins and other insignia had become "an ongoing problem" in most correctional institutions. Some officers had been wearing several and some were:"blatantly offensive," showing for example a pair of handcuffs, a clenched fist and a large set of crossed keys. One he described as "pornographic." Seeking uniformity, the Directors had all decided that only items issued or authorized by the Government of the Ministry should be permitted. 'Mr. Main acknowledged, however, that the OPSEU pin is inoffensive and "conservative." (. . On his part, Supe~rintendent Starkie testified that there had been a "gradual deterioration" of respect for the uniform, and that the wearing of mariy different emblems was eroding~the .imaqe of employees who are peace officers. They were beginning to look like a "Christmas Tree." He could tolerate only one emblem but the number and variety had in- creased. Nith the exception of underwear and socks the Mini stry paid for and provided officers' unlforms,~ including the tie --- which is the clip-on type so that it cannot be : - 10 - used to strangle an officer. In retrospect he agreed with the decision of the Executive Driector rather than with the recom- mendation of the Clothing Committee meeting which he had I chaired. Mr. Starkie said he had reprimanded one or two employees for violations of the Dress Code but he denied that he had "disciplined" Mr. Burns. The matter had not even been reported to him by Mr. Brown, who has no disciplinary power. The griever has given five reasons for believing that he had the right to wear an OPSEU tie pin: 1) It was practical to hold the tie in place: 2) It symbolized his capacity as a union officer something of interest to other'officers: 3) It did not represent an insult to the Employer, theother party to an agreement with OPSEU: 4) It was a "civil liberties" issue: 5) He knew of no complaints from inmates or others aboutwearing a Union pin. Mr. Burns agreed that uniforms are necessary to dis- tinguish the correctional officers from inmates. Yr. Burns also said that he had thought, after talks with Mr. Starkie, that a "personal choice" pin would be permitted. He had interpreted the circular of February 23 - 11 - "to give us some leeway." It appeared to him that after March 12 the Superintendent found it necessary to "back up" certain supervisors. For the Employer,.Mr. Benedict said Mr. Burns had not been disciplined: a penalty could result only from the formal disciplinary process. Mr. Benedict argued that the policy adopted by the Ministry was within its rule-making powers and entirely within the meaning of the criteria laid down by Judge Robin- son in the famous KV? case (1965) 16. L.A.C. 73, which he - reviewed. The policy was “neutral and nondiscriminatory, not anti-union. It did not interfere with the personal freedom of the employee: it was merely part of the rules about a uniform which the parties agreed was necessary in their work-place, a uniform prescribed and paid for by the Hinistry. Yr . Benedict emphasized that "the work-place is a special community" and the employees were peace officers who needed to preserve a certain image. Mr. Benedict referred to a number of cases dealing with rules about appearances, although pointing out that the i :, , .‘. _ .~. - 12 - "hair and beard" cases are in a different category. The proper test, he argued, was not whether the policy was "reasonable" but whether it had been adopted in good faith for legitimate reasons related to the nature of the undertaking carried on by the Employer. For the qrievor, Ms. Mercer-de-Santis acknowledged that there is nothing in the collective agreement on which she could rely, but said Mr. Brown's order of March 12 raised a question of discipline: at the very least it was "similar to a reprimand." In Its context it was an "or/else" order, which explained why the qrievor complied. The Union, she said, recognized management's right to make reasonable rules, but to prohibit the OPSEU tie-pin was not reasonable. She referred to the award of arbitrator Shime in Dominlon Stores (19761 11 L.A.C. (2d) 401 who upheld the grievance of an employee, whose "nea:, well groomed. closely clipped beard" did not constitute a threat to the Employer's business. YS. Yercer-de-Santis said that management's claimed Interest In "uniformity" was not valid: its policy permitted _,. ,. - 13 - a variety of decorations such,as the 25-year pin and the St. John's Ambulance badge as well as rank insignia. The OPSEU pin was "small, neat,:functional" and therefore unobjectionable. It was no threat to the image of a peace officer and there was no evidence of complaints from inmates or the public. Our view is that in many respects this case resembles Sullivan 578/81, which arose when the Liquor Control Board prohibited the wearing of blue jeans'by employees on duty. That 'case was brought before the Board as a "policy grievance" by a union president. In this case we do not think any disci- plinary penalty was imposed on Mr. Burns: he was merely ordered to respect what Mr. Brown understood to be the policy of the Ministry. The issue therefore is whether that policy was un- reasonable. The grievance itself alleged-that the policy was contrary to the "spirit" of the collective agreement --- and that it was unreasonable. For the reasons given by Chairman Weatherill in Sullivan, we do not think those are matters on which this Board can grant $ remedy to the qrievor. IJe have no jurisdiction to grant a remedy unless it is proved that .there has been a violation of the collective agreement or that ,r :.. ,~, .. I . - 14 - the griever has been disciplined without just cause. Those are the limits of our authority under Section 18 and 19 of The Crown Employees Collective Bargaining Act. As is well known the Ministry of Correctional Services Act and the Regulations thereunder clearly recognize the very special nature of the work done by Correctional Officers. It has also been recognized in a number of decisions by this Board. AS well, it is recognized by union officers like Mr. Burns. who says that a "uniform" is necessary to "distinguish guards from inmates." Although, for the reasons grven above, the instant grievance must be dismissed, we have a comment to make. We do not consider that the Employer had convincing reasons for prohibiting the OPSEU pin. Mr. Main conceded it is net objectionable but seemed to discover guilt by association with other pins thought to be "blatantly offensive." ?JO evidence was put forward that it detracts from the Image of a peace officer. There were merely vague assertions that there must be a limit to the decorations xorn. Bxactly why the line should be drawn against the Union's pin has not been explained. -1 <, L _ i - 15 - The Employer, after all, does have a specialrelation- ship with the Union, probably a closer relationship than it has with the St. John's organization. To discriminate agains,t the OPSEU pin tends to give the impression that the Employer is reluctant or unwilling to give the Union recognition beyond that strictly required by law. That would be an unfortunate impression and --- it is hoped --- the wrong impression. In our view, senior officers of the Ministry Gould be wise to reconsider the formula adopted in June, 1982. This grievance, however, cannot be upheld. Dated at Toronto this 27th day of July, 1983 E.B. Jolliffe, Q.C. Vice Chairman I iMember A.G. Stapleton Member 7: 3550 7: 4414 EBJ:SOl