Loading...
HomeMy WebLinkAbout1983-0094.Beckles.83-09-07Between:. OPSEU (Uiril Beckles) Before: 94/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before i THE GRIEVANCE SETTLEMENT BOARD - and - The Crown in Rieht of Ontario Grievor (Ministry of Correctional Services) Employer A.M. Kruger S.D. Kaufman H. Roberts Vice Chairman Member Member For the Grievor: J. Hayes, Counsel Cavalluzzo, Hayes & Lennon For the Employer: J.F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing: July 27, 1983 This matter comes before this Board as a result of the grievance launched bv Mr. U. Beckles against a two day suspension imoosed for alleged insubordination. The parties agreed that the Board was orooerly constituted and had jurisdiction to. hear this matter. Fortunately there is agreement on most of the relevant facts. Mr. Beckles has been employed as a Corrections Officer at the Toronto Jail since March 3, 1975. The Toronto Jail is a maximum security institution housing prisoners awaiting trial. Many of the inmates are charged with serious offences and are considered to be dangerous. The jail houses far more inmates than its rated capacity. Mr. Be Grandis, the Super-intendant of the Toronto Jail told the Board that all Correctional Officers receive Standing Orders which inform them of proper procedures. All employees are required to familiarize themselves with these orders and to keep abreast of any changes in the Standard Order Book. Every employee has his own cozy of this book. Copies of the Forward and of Orders # I and #42 were filed with the Board. Included in the Standing Order #l are instructions to staff to inform their supervisors of any unusual incidents that occur while they are on duty. Written reports on such incidents are required before the officer completes his tour of duty. This is necessary to assist the supervisors in anticipating problems so that action can be taken to prevent trouble. Another part of that order requires officers to be cooperative and courteous in r -3- 1 dealinq with fellow members of staff. Standing Order #42 requires an on-duty employee who witnesses any unusual incident to report the matter verbally to his suQervisor and to "QreQare and submit a comprehensive written occurrence report outlining the events" prior to the completion of his shift. It qoes on to explain in item 4 how such reports are to be prepared. We reproduce this item in full here:- 4. Preparation of Written Reports The following will apply to all officially submitted occurrence reports: They must be legible. They must be recorded on the prescribed form (9902) unless this particular form is unavailable at the time. They must accurately describe in detail factual information relating to the when, how, where and who of the incident being communicated. Occurrence reports will not be prepared in the immediate area of assignment, but will be done so in accordance with instructions of the Shift or Unit Suvervisors, or the Senior investigating officer. Reports will be completed and submitted to the Jail at shift conclusion. .RmQloyees experiencing difficulty in the preparation of any official report should consult with the Shift or Unit Supervisor in order that necessary assistance -4- is obtained prior to the report commencement. The Board also received copies of a document headed Deleqations Under Public Service Act And Public Service Act and Requlations. It is siqned by the Deputy Minister and the Minister of Correctional Services and in Section 22(l) states the followinq:- Section 22(l) Suspension Pendinq an Investiqation - Suspension for up to twenty (20) working days with or without pay:- Assistant Deputy Ministers; Executive Directors: - Suspension up to and including twenty (20) work days with pay:- Branch Directors; Branch Administrators; :ing - Suspension up to and including three (3) working davs with pay:- Suoerintendents of Institutions; DeDUty Superintendents Of InStitUtiOnS; Supervising Probation and Parole Officers; - Authority to relieve employees for one (1) working shift:- Management employees with line supervisory reoonsibilities; Senior Probation and Parole Officers -5- All the witnesses agree that on November 26, 1982 Mr. Beckles worked the shift from 3 p.m. to 11 p.m. in section 4C. That section of the Jail houses prisoners considered to be difficult or danqerous. At about 10 o.m., Mr.- Beckles called his wmervisor Mr. Thompson to,report that the inmates in 4C refused to obev his order that they return to their cells. That niqht the inmates were to watch television until 10 p.m. at which time they were to be locked up in their cells. On some occasions, the sound on the television was turned up after the lock up so the orisoners could hear the programme in their cells. Mr. Thompson and Mr. Turner, supervisors on that shift, came to 4C and were admitted by Mr.' Beckles. There is a difference of opinion concerning whether they came alone or were accompanied by ,Mr. John, a Correctional Officer. Mr. Beckles testified that Mr. John came with the supervisors. Mr. Thompson denied this. The written reports submitted by Messrs. Turner and Thomoson do not mention Mr. John. We find that nothing important turned on this conflict in the evidence. The inmates were asked by the supervisors why they had refused to qo to their cells. In response they denied refusing and said that they had not been asked to do SO. When the suuervisors told them to return to their cells, the inmates coooerated fullv. Mr. Thompson instructed Mr. Beckles to fill out and Occurrence Report and the supervisors left. Near the end of his shift, Mr. Beckles'wrote the following Occurrence Report:- -6- 26/H/82 1050 hrs. To: Mr. C. De Grandis Re: Lock DQ Sir: On the above mentioned date around 1050 hrs. I informed CDl. Thompson that the inmates in 4C were reluctant to go into their cells. He qave this reoort to Messrs. Thompson and Turner. One of the '.suQervisors told Mr. Beckles to elaborate on the incident. Mr. Beckles then added the following to his report:- "Went into their cells without any incident." On November 30, 1982 in the afternoon, Mr. Leithead, then the Senior Assistant Superintendent at the Toronto Jail was look- ing through the recent file of Occurrence Reports. Se came across Mr. Beckles' report. Mr. Leithead felt that the incident reported was serious and that the Occurence Report was inadequate because it failed to provide sufficient detail of what had transpired. Mr. Leithead knew that Mr. Thompson and Mr. Beckles would be on the afternoon (3 Q.m.-11 p.m.1 shift that day. He asked Mr. Thomoson to request a more complete report from Mr. Beckles. Around 4:30 o.m., Mr. Beckles was called to Mr. Thompson's office. Another suoervisor, Mr. Kennedy was in the office when Mr. Beckles arrived. Mr. Thomoson asked Mr. Beckles to rewrite his ReDOrt and Qrovide more detail on what had transpired. Mr. Beckles indicated that he had nothing to add and that if they insisted on a re-written Report, his new report would be substantially the same as the one he had already submitted. He stated that Mr. Thompson knew of what had transpired after he had arrived on the scene and could report that himself. He also complained that Messrs. Thompson and Turner had failed to make a reoort in the log book on November 26. He saw no reason to place the entire responsibility for reporting on him. Mr. Kennedy then asked Mr. Beckles to write a new report that was different from his earlier one. Mr. Beckles repeated what he had said to Mr. Thompson. Mr. Kennedy repeated his request for a fuller Report but Mr. Beckles refused to comply. Mr. Kennedy warned the grievor that if he persisted, he would be suspended with pay. Mr. Beckles refused to alter his Report. At this uoint, Mr. Kennedy ordered the grievor to carry out his request and again, Mr. Beckles refused to change the Report. Mr. Kennedy told Mr. Beckles that for refusing to carry out the order, Mr. Beckles was ~suspended for the balance of the shift. He asked the grievor to leave the premises. Mr. Beckles refused to obey, stating that Mr. Kennedy lacked the authority to suspend him. Mr. Beckles insisted on seeing Mr. De Grandis but was told that the Superintendant was not on the premises, While there is some dispute concerning when Mr. Beckles asked for a union representative, this Board accepts the griever's evidence that he made his first request before Mr. Kennedy suspended him and reseated it a number of times during the meeting both before and after Mr. Leithead intervened. -8- There is also some dispute concerning whether Mr. Beckles shouted at this meeting. The grievor denies it. Messrs. Kennedy and Thompson told the Board that he did shout. Mr. Leithead whose office was next door states that he heard the grievor shouting. This is of some significance because the meeting took place near the kitchen where a number of inmates work. Management at the iail prefers not to have inmates aware of disagreements among staff because inmates may try to take advantage of this by olayinq staff members off against one another. The Board concludes that Mr. Beckles was upset by the oressure exerted on him at that meeting and did shout when resoonding to his superiors. We received no evidence that inmates heard him shout or that they were influenced by the argument. After Mr. Beckles refused to leave the premises, Mr. Kennedy went next door to inform Mr. Lei.thead of what had transpired. At the,time Assistant Superintendent Nicholson was in Mr. Leithead's office. After Mr. Kennedy explained what had transpired, Messrs. Leithead and Nicholson accompanied Mr. Kennedy back to the office next door. Mr. Leithead informed Mr. Beckles that Mr. Kennedy had the authority to suspend him with oav and asked the grievor to leave. Mr. Leithead then told Mr. Beckles that he (Mr. Leithead) had suspended the grievor and he order him to leave the premises. Mr. Beckles replied that none of those present had such authority. He demanded a meeting with Mr. De Grandis. He also asked to see a union representative. Mr. Leithead told Mr. Beckles to leave and to return the next morning -9- at 10 a.m. to see the Superintendent. At about 5 p.m. Mr. Beckles decided to leave and was escorted out by Mr. Thompson. On the way out, Mr. Beckles met Mr. Vidal, a union steward and told Mr. Vidal what had happened. The steward oroceeded to the supervisor's office to discuss the matter. It appears that any conversation there was brief and Mr. Vidal left. Mr. Leithead wrote a report on the incident for Mr. De Grandis that evening. When Mr. Beckles was in the parking lot after leaving the oremises that day, he met Mr. De Grandis. Mr. Beckles began to relate the events of that day to the Superintendent who told the qrievor that he would prefer to discuss it the next morning. Mr. Beckles came to see Mr. De Grandis the next day, December 1, at 10~ a.m.:sndheeiKas~~told to go home and to come to a meeting on Friday December 3 at 10 a.m. in Mr. De Grandis' office. The grievor had been scheduled for his day's off duty on December 1 and 2 and there is no suggestion that the suspension continued on these days. At the meeting on December 3, 1982, a union representative was oresent. Mr. De Grandis invited the various people involved in the incidents on November 26 and November 30 to relate what thev had seen or heard. After that meeting Mr. De Grandis considered the written reports he had received from Messrs. Leithead, Kennedy and Thompson as well as the oral evidence - 10 - oresented at the December 3, 1982 meeting. On December 9, 1982, Mr. De Grandis wrote Mr. Beckles and informed him that he would be suspended without pay for two days for insubordination on November 30, 1982 when the griever had refused to comply immediately with Mr. Kennedy's order to leave the institution. It is that decision that the grievor has challenged before this Board. The Board has considered the evidence and argument concerning differences in the facts as they appear in the various reoorts of the suoervisors. We also heard in argument that these reports, particularly that of Mr. Turner, were inadequate. In our view, nothinq turns on this and we see no point in rehearsing theses matters at length here. The Board is satisfied that, while there is conflicting evidence on such matters as the role, if any, of Officer John on November 26, some details of. the November 30 meeting, and the reports of the supervisors concerning the events on November 26 and 30, on the crucial questions before us, the evidence is not in dispute. These questions are:- 1. Was the order to Mr. Beckles to write a new report reasonable? 2. Did Mr. Beckles have legitimate reason to challenge that order? 3. Did Mr. Beckles have the right to have a union steward present at the November 30 meeting? 4. Did Mr. Kennedy have the authority to suspend ~Mr. Beckles with pay and order him off the premises on November 30? 5 - . Did Mr. Beckles have good reason to challenge that order? 6.. Did Mr. De Grandis have reason to discipline Mr. Beckles? If he did, was a two day suspension without pay a reasonable form of discipline considering all the circumstances? The Board has carefully considered the evidence and argument and we find as follows:- 1. The order to write a new report was reasonable. If Mr. Beckles felt unable to "name names" because no obvious rinqleaders were involved, that could have been stated in his reoort and might have been helpful to his supervisors. Only Mr. Beckles witnessed the events that led to his calling for assistance and onlv he could have adequately described for his suoervisors what had transpired. 2. Mr. Beckles had no good reason to challenge that order. It was not for him to judge that adequacy of the actions taken by his superiors. Furthermore, he was not aware of their reports. No one asked him to provide false information. All he was asked to do was to provide more complete information as txovided for in the Standing Orders. -l2- 3. Nothing in the collective agreement required the Employer to call in a union steward when Mr. Beckles was susoended with pay. A suspension with pay was not a disciplinary measure although it did indicate that discipline was possible. It might have been helpful to have had a union representative there but it was not required. 4. It is clear that any of the supervisors had the authority to suspend Mr. Beckles with pay under Section 22(l) of the Delegations document cited earlier. If Mr. Beckles had reason to doubt this, he could have objected and included it in his qrievance; It might have been wise for those members of management who met with Mr. Beckles to have made clear to him the basis for their action, but they were not required to do so. 5. Mr. Beckles had no good reason to refuse the order to leave the premises. He knew he would be paid for the entire shift and would suffer no loss in income. In the military-like setting of a prison, there is stronger reason to be concerned about insubordination than there would be in the private sector. Had Mr. Beckles stood his ground, it would have undermined the authority of Messrs. Kennedy and Leithead in his own eyes. Had other officers or inmates learned of his successful refusal to follow orders, the consequences could have been significant. Arbitrators have concluded that employees issued. orders should obey and grieve later unless:- (a) the order would involve them in performing an illegal act; - 13 - (b) the order could endanger the health and safety of the employee or of others: (cl obeying the order could result in some significant damage to the employee that the grievance procedure could not rectify. Cd) the order relates to some aspect of the employee's behaviour that bears no relationship to his work oerformance. The Union does not suggest that obeying the order to leave the premises would lead Mr. Beckles to commit an illegal act or that it would have endangered anyone. Nor can any other form of damaqe to Mr. Beckles be shown. The order certainly related to his work performance. 6. Mr. De Grandis had good reason to discipline Mr. Heckl.es. Mr. Beckles repeatedly refused to obey a reasonable order to imorove his report. ,Nhen he was suspended with pay, he reoeatedly refused to obey the order to leave the premises. His action was unreasonable and there is no support in the collective aqreement for what he did. Mr. De Grandis provided Mr. Beckles with a full opportunity to exolain the reasons for his behaviour before any decision on discipline was made. The Superintendent thoroughly investigated the matter before coming to his decision. A two day suspension was a modest penalty under these circumstances. The Board sees no reason to inter- fere with Mr. De Grandis' decision. For all these reasons, this grievance is dismissed. DATED at Toronto, Ontario this 7th day of September, 1983. A.M. Kruger --&wLL- S.D. Kaufman 0 Member H. Roberts Member 7:1200 7:3600 7:3610 7:3612