Loading...
HomeMy WebLinkAbout1983-0113.Dvorak et al.84-11-27180 DUNOAS STREET WEST. TORONTO. ONTARIO. M5G lZ8 - SUITE 2100 TELEPHONE: 416/598- 0688 113/83 122/83 115/83 123/83 120/83 124/83 121/83 125/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Be tween: OPSEU (A1 lan Dvorak, et a1 . ) Grievors - and - The Crown in Right of Ontario (Ministry of Correctional Servi ces) Employer Before: M.K. Saltman - Vice-Chai rman W. Walsh - Member B. Lanigan - Member For the - Grievors: P. J.J. Cavalluzzo, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: D.W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General Hearings : - Apri 1 28, 1983 July 7, 1983 July 11, 1983 July 14, 1983 August 30, 1983 August 31, 1983 September 1, 1983 September 28, 1983 This case arises out of the dismissal of four Correctional Officers at the Toronto East Detention Centre. The circumstances of the dismissals are set forth as follows in a decision of the Board dated August 16, 1984: o I I The Grievors in the instant case, A1 lan Dvorak, William Bradley, Michael McKinnon and Robert Moreau, were employed as Correctional Officers at the Toronto East Detention Centre. On December 7, 1982, an inmate of the Toronto East Detention Centre sustained serious injury as the result of an alleged assault by Correctional Officers.* As a result of this incident, the Employer conducted an investigation under Section 22 of the Ministry of Correctional Services Act, R.S.O. 1980, c. 275, which reads as follows: '22. The Minister may designate any person as an inspector to make such inspection or investiuation as the Minister may require in connection with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation. ' As a result of the investigation, six Correctional Officers, who were implicated in the assault, were dismissed. The four Grievors, who were not implicated in the assault, were suspended pendi ng investigation and ultimately dismissed for breach of their trust as Correctional Officers and for violation of Section 22. More particularly, Mess rs . Dvorak, McKi nnon and Moreau, all of whom were Union Officers, were dismissed for obstruc- tion of the Ministry's investigation conducted pursuant to Section 22. Mr. Bradley, who was not a Union Officer, was dismissed for withholding information from the investigation. Each of the Gri evors filed two grievances, one against indefinite suspension and one against dismissal. The eight grievances were referred to this Board for determination. At the request of the Union, the Board ordered that these grievances be consol idated and heard together. * Six Correctional Officers were dismissed for the assault. The grievances of those Officers were dealt with by another panel of the Board: see Bedeau et al. (52/83, 54/83, 57/83, 55/03, 112/83, 114/83, 116/83, 118/83, 53/83, 56/83, 117/83, 119/83) ." (ttie "Bedeau" case) At the outset of the hearings, the Employer objected to the Board's jurisdiction to review the dismissals as the Grievors were dis- missed pursuant to Section 22 of the Ministry of Correctional Services Act. The Board heard argument on the objection at a hearing on April 28, 1983 and reserved its decision. On June 30, 1983, the Board issued its decision dismissing the preliminary objection with reasons to follow. Subsequently, the Board proceeded to hear evidence and argument for seven days on the merits of the grievances. In addition, by agreement of the parties, the Board received approximately 600 pages from the transcript of the evidence in the Bedeau case. On December 12, 1983, the Board* issued its decision reinstating the Grievors with reasons and terms of the reinstatements to follow. Those matters are dealt with in this decision. The Toronto East Detention Centre is a facility for the detention of inmates awaiting trial or transfer to another institution. The Detention Centre, which was designed to hold 340 inmates and is often filled beyond capacity with over 400 inmates, consists of five floors, three of which are devoted solely to the incarceration of inmates. Each of the three floors is divided into three units, which are referred to as "A", "B" and "C" with the appropriate floor number. There are generally two Correctional Officers assigned to each unit. Assignments are made at the start of each shift for the duration of the shift. The allegations against the Grievors arise out of an incident which took place on December 7, 1982 on the 5C West unit, which is located at the west end of the 5th floor. On December 7th, * Subsequent to the hearing on the preliminary objection, the parties agreed to substitute Ms. Lanigan as the Board Member in place of Mr. Reistetter to adjudicate upon the merits of the dispute. Dorianne Tennant and Billy Tucker were the Correctional Officers assigned to the 5C unit, which is divided into two distinct areas: 5C West and 5C East. In December, 1982, there were approximately 19 inmates incarcerated in ten cells on the 5C West unit. When the inmates are not in their cells, they are in a "day room", which is a communal area immediately adjacent to the cells. The day room is a large open area with benches and tables and a television set. At the southeast end of the day room is a communal shower. On the south wall of the day room to the west of the shower is a door leading to the corridor. The door is required to be locked at all times and the key is in the possession of the two Correctional Officers assigned to the 5C West unit. The door has a wire grille through which most of the day room can be viewed. When one Officer enters the unit for any reason whatsoever, the other Officer assigned to the unit remains outside the unit at the grille door to observe whatever happens within the unit. If the unit Officers require assistance, the Officer waiting outside at the grille door pushes a buzzer which is affixed to the wall beside the grille. When depressed, the buzzer sounds an alarm which registers in Central Control and is transmitted over the public address system as an emergency "code" which is identified with the respective floor. For instance, a code on the 5th floor is identified as "Code 5", which is a direction to Officers throuqhout the institution to respond to an emergency on the 5th floor. (Although there was some dispute as to the appropriate number of Offjeers who were required to respond on a code, it is unnecessary'to determine that issue for the purposes of this case.) It is generally agreed that the inmates on the 5th floor were "heavy duty", which is a reference to their propensity for violence. Violence of a most reprehensible nature in fact occurred on the 5C West unit on the afternoon of December 7, 1982. Shortly after 1 :30 p.m. on December 7th, Mr. Tucker and Ms. Tennant, who were doing some paper work in the Supervisor's Office between the 5C West and 5C East units, became aware of a commotion on the 5C West unit. Mr. Tucker proceeded to investigate. Through the grille, Mr. Tucker saw two inmates engaged in an altercation on the floor between cells 6 and 7 at the north end of the day room. Mr. Tucker yelled to the inmates to stop fighting but the admonition was ignored. Ms. Tennant, who fol lowed almost immediately, repeated the admonition with a similar result. Meanwhile, a crowd of inmates had pathered around the protagonists. Officers Tucker and Tennant ordered the crowd to disperse but the order was ignored. In view of the volatility of the situation, which was described in evidence as "near riotous" and the "worst ever" experienced at the Toronto East Detention Centre, Ms. Tennant pushed the code button to summon help. The public address system announced "Code 5", indicating that assistance was required on the 5th floor. The first Officer to respond to the code was Eric Proctor. When Mr. Proctor arrived on the scene, he accompanied Mr. Tucker into the day room in order to break up the fight. Ms. Tennant waited outside at the grille door. When the Officers came upon them, Inmate Stalteri was on his knees, being struck repeatedly by Inmate Baxter. Mr. Tucker restrained Inmate Baxter while Mr. Proctor restrained Inmate Stal teri . Notwi thstanding the restraint, Inmate Baxter continued to assault Inmate Stal teri. From this point on, the evidence is fraught with contradic- tion. It is not necessary for the purposes of this case to resolve all of the contradictions with respect to the assault, which has been ably done by another panel of the Board: see Bedeau et al., supra. However, it is necessary to review the evidence in some detail in order to understand the allegations against the Grievors dnd in order to assess the credibi 1it.v of various witnesses. The evidence indicates that Mr. Proctor attempted to brincj Inmate Stalteri out of the day room while restraining him in a head lock from behind. As Mr. Proctor was proceeding toward the grille door, he was suddenly confronted by a group of Officers coming through the grille door. Although the entire group could not be identified, it would appear that Officers Davidson, Fitzwilliam and Gaston were among them, and that some or all of these Officers, including Officer Davidson, took hold of the Inmate in order to assist Mr. Proctor in removing him from the day room. Mr. Davidson, in particular, grabbed the Inmate by the collar and began pulling him in the direction of the grille door. According to Mr. Davidson, when t~e took hold of him, the Inmate was being restrained by both Messrs. Proctor and Bradley (although Mr. Proctor was not aware of Mr. Bradley's presence and Mr. Bradley himself claimed that he was prevented from entering the day room by the crush of Officers escorting the Inmate through the grille door). On Mr. Proctor's version of the evidence, before reaching the gri 1 le door, Inmate Stal teri was struck several blows, apparently by Correctional Officers. Mr. Proctor was the only witness, apart from the Inmate himself, who testified that the Inmate was assaulted while still in the day room. The bulk of the evidence describes an assault in the corridor outside the day room. According to Mr. Davidson, the Officers escorting the Inmate, having passed through the grille door, turned left and proceeded eastbound along the corridor where they encountered a group of Officers coming from the opposite direction who assaulted the Inmate some five feet from the grille door in full view of the inmates inside the day room. Mr. Proctor's evidence was consistent, a1 though less detailed (Mr. Davidson somewhat incredibly gave a detailed description of the precise number of blows and kicks inflicted on the Inmate), and described what was in essence two assaults on the Inmate in the corridor. The first took place between the Supervisor's Office and the 5C East door where, according to Mr. Proctor, the Inmate was kicked and struck and pulled by the hair. (This evidence is con- sistent with the evidence of Officer Lonsdale who admitted to grabbing the Inmate by the hair although in a different location to that men- tioned by Mr. Proctor. According to Officer Lonsdale, he grabbed the Inmate by the hair in order to assist in his removal through the grille door. At this point, Officer Lonsdale claimed that he lost his grip on the Inmate and was thrown against the back wall of the corridor. Accordingly, he did not form part of the group of Officers escorting the Inmate along the corridor. Mr. Bradley, for his part, admitted to joining the escorting group, which numbered between four and six Correctional Officers, just outside the grille door.) As they continued eastbound along the corridor, the Inmate was struck a blow to the left side of his face. As a result of this blow, the Inmate appeared to go limp and fell or was dropped to the floor in the vicinity of the 5C East door, where he was left by the escorting Officers (with the exception of Mr. Bradley) who ran back to the 5C West unit to assist with the disturbance. Included among the Officers who returned to the 5C West unit were Messrs. Proctor and Davidson. Meanwhile, once the Inmate had been removed from the 5C West unit, Lieutenant Simpson and Corporal Parish, who were among the last group of Officers to respond to the code, assisted Officer Tennant in closing the grille door against the crush of inmates who were rushing the door. Notwithstanding their containment, the inmates remained extremely hostile. After viewing the situation from the vantage point of the grille door, Lieutenant Simpson and Corporal Parish decided to enter the unit to quell the disturbance. After some amount of persuasion and a considerable show of force, the inmates were eventually quietened down and locked in their cells. Shortly thereafter, Lieutenant Simpson was summoned to the corridor were he found Inmate Stalteri lying in a pool of blood and breathing laboriously. When Lieutenant Simpson came upon him, the Inmate was being attended by two Nurses from the infirmary. Also in attendance were two officials of the Ministry, who happened to be in the institution when the code was announced on the 5C West unit; Assistant Superintendent, Mr. Lochead; and several Correctional Officers, including Officer Bradley. Officer Bradley said that prior to summoning assistance, he turned the Inmate on his side to prevent him from choking, although according to one witness, this precaution was taken by Mr. Lochead. In the Board's view, nothing turns on this discrepancy. In any event, it is clear that it was.Mr. Bradley who summoned the INurse. Two Nurses in fact responded to the page. With the assistance of Officer BI-adley, Lieutenant Simpson, Corporal Parish and others, the Inmate was transported in a wheelchair to the infirmary where arrangements were made for him to be escorted to hospital . Once an escort had been arranged, Lieutenant Simpson returned to the 5C West unit to investigate the source of the inmate hostility. He unlocked the cells and spoke to the inmates in the day room, He also received a petition, prepared by one of the inmates and signed by sixteen others, identifying an Officer fi tt-ing the description of Mr. Davidson as the main assailant. Mr. Simpson presented the petition on behalf of the inmates to the Superintendent of the Toronto East Detention Centre, Mr. Dunbar, to whom he reported the assault. Mr. Dunbar perused the petition and requested a written report from Lieutenant Simpson and from each of the Officers involved in the code. Subsequently, Mr. Dunbar contacted the Investigations Branch of the Ministry of Correctional Services to request that an investigation be carried out. Inspector Clair McMaster was assigned to conduct the investigation commencing the following day. Meanwhile, once the disturbance had been quelled on the 5C West Unit, Messrs. Proctor and Davidson returned to their respective units for the balance of the shift. Mr. Proctor claimed that some time prior to the end of the shift, he received a telephone call from an unidentified caller admonishing him to "stand solid or else", which he understood to be a direction to maintain silence about the assault in accordance with an unwritten code of silence among Correctional Officers. Mr. Proctor never mentioned this alleged telephone call to anyone. In any event, prior to the completion of his shift, at the request of Lieutenant Simpson, Mr. Proctor made cut an "occurrence report", which is a report made by a Correctional Officer of any unusual occurrence in the course of the shift. Although all of the Officers who responded to the code were required to file occurrence reports prior to the end of the shift, it would appear that occurrence reports were filed by only some of the Officers and that not all of these were filed by the end of the shift. Furthermore, when an inmate engages in misconduct (such as a fight), it is incumbent on the Unit Officers to file a "misconduct report" (or "charge sheet", as it is commonly referred to) setting out misconduct charges against the inmate. 'The charges are then investigated and referred to the Superintendent or his designee who conducts a hearing forthwith to determine whether or not the charges a.re warranted. If - so, discipline is assessed against the inmate. Although there is a requirement that charges be laid when inmates engage in a fight, no charges were laid against the protagonists in the instant case, Inmates Baxter arid Stalteri. Furthermore, in accordance with alleged intimidation, Mr. Proctor's occurrence report was incomplete and omitted reference to the assault on Inmate Stalteri by Correctional Officers. Although there was no allegation of intimidation, Mr. Davi dson a1 so submitted an incomplete occurrence report which omitted .. - both a description of the Inmate's injuries and the identity of the assailants. Mr. Davidson attempted to justify the omission on the grounds that the Union would have access to the report and would, therefore, know if he had implicated anyone. However, Mr. Davidson changed his mind about implicating his fellow Officers when later in .the shift he was advised by Officer Ron Worrell that he was going to be "set up" by the inmates and that the Officers were not "with him on this one". (Officer Worrell denied that he had any conversation with Mr. Davidson.) The implication, as Mr. Davidson understood it, was that he would be iden- tified by the inmates as the assailant and that he could expect no support from the Officers. (Mr. Davidson was in fact implicated by the inmates as the assailant, which he attributed to a "conspiracy" between the inmates and the Officers.) Mr. Davidson felt, in view of the severity of the assault, that there would be a scapegoat among the Correctional Officers and that he would be chosen since he was not well-liked. Mr. Davidson said that he decided to identify the assailants in order to avoid being scapegoated. Mr. Davidson did not advise anyone of his intention to implicate the assailants, even though he spent four to five hours that evening discussing the code with Mr. Proctor. Apparently, Mr. Proctor did most of the talking and, in course of conversation, identified six Officers as the assailants of Inmate Stalteri. Although he was generally rather ci rcumspect, according to Mr. Proctor, Mr. Davidson made a number of suggestions as to what had taken place during the code. He also said that it was .important to discredit Ms. Tennant (who was standing at the grille door and, therefore, would have been in a position to have seen the assault) since Ms. Tennant was going to "set up", i-e. implicate Mr. Proctor. (At no time did Mr. Davidson give any indication that he also was going to be set up.) Although Mr. Davidson said that he could not recall making this statement, after vigorous cross-examination, he did not categorical ly deny it. In any event, the Board finds that this statement was made. In accordance wi th his earlier resolve, Mr. Davi dson requested an interview, which was granted, wi th Superintendent Dunbar at approximately 7:30 a.m. the next morning. Mr. Davidson told the Superintendent that he understood he would be implicated in the assault on Inmate Stalteri and offered to identify the assailants. At the time Mr. Davidson made the offer, he was aware that he had been implicated by the inmates. Mr. Davidson in fact identified six assailants of Inmate Stal teri . Mr. Dunbar instructed Mr. Davidson to make this information available to Inspector McMaster o-F the Investigations Branch. Inspector McMas ter comnienced his investigation by conferring with Mr. Dunbar shortly after 9:00 a.m. on December 8th. After reviewing the occurrence reports which had been submitted, Inspector McMaster recommended that the matter be referred to the Crown Attorney. In accordance with this recommendation, Mr. Dunbar contacted the Crown Attorney's Office. Subsequently, two Police Officers were dispatched from the Criminal Investigations Branch of the Metropolitan Toronto Police Department to conduct their own investigation. Meanwhi ley after leaving Mr. Dunbar's office, Mr. Davidson attended morning "parade", which is a gathering of Correctional Officers where daily assignments are given out and announcements made prior to the start of the shift. On this particular occasion, Lieutenant Simpson informed the Officers that an investigation would be conducted into the assault on Inmate Stal teri by the Investigations Branch and that all of the Officers who had responded to the code on the 5C West unit would be interviewed. Mr. Dvorak was not on duty on December 7th. He first became aware of the code when he reported for duty on the day shift on December 8th. According to Mr. Dvorak's evidence, prior to the start of the day shift, several Officers approached him to discuss the code and to complain that the Ministry was not supporting them. According to Mr. Dvorak, these officers (who were never identified to the Board) favoured an illegal walkout to press their claim for support and said that they would refuse to cooperate with an investigation. Mr. Dvorak said that he advised the Officers not to "interrupt or impede" the investigation and that under no circumstances would he sanction an illegal walkout. In view of the dissension among the Officers, Mr. Dvorak said that he sought the assistance of Robert Moreau and Michael McKinnon, Chief Steward and Union Secretary, respectively. A1 though it was a day off for him, Mr. Moreau agreed to report to the institution immediately. Mr. McKi nnon, who was scheduled to work later in the day, was unable to report immediately. While Mr. Dvorak waited for Mr. Moreau, he became aware of the inmate petition implicating Mr. Davidson. When Mr. Moreau arrived, Mr. Dvorak explained briefly the circumstances surrounding the code and the reaction of the Officers and asked for his assistance in quashing any discussion of an illegal walkout. Mr. Dvorak arranged to meet Mr. Moreau at the elevators after parade. Mr. Dvorak intended to address the Officers as they boarded the elevators after parade to take up their assigned posts. However, the first elevator had already left with a group of Officers and the doors on the second elevator were about to close when Mr. Dvorak arrived. He held the doors ajar and addressed the Officers. There was considerable dispute about the subject-matter of his address. However, there was no dispute that he informed the Officers of their right to Union representation in the course of the investigation and that he implored them to "stay solid" and "keep cool". At the hearing, Mr. Dvorak attempted to explain the use of the word "solid", which he said referred to a "solid team of professionals which protects each other's interests in case of trouble". He emphatically denied that this was intended as an instruction to withhold information about the assault. According to Mr. Dvorak, he was merely instructing the Officers to stay united and to avoid any "irrational action", which he said was a reference to an illegal walkout. According to Mr. Proctor, who was on the elevator, Mr. Dvorak also said: "We don't need a 'rat' on this one", which was apparently a reference to an informer. Mr. Dvorak emphatically denied this statement, which was not corroborated by any of the other Officers who were on the elevator. Mr. Moreau's evidence was consistent with Mr. Dvorak's. According to Mr. Moreau, Mr. Dvorak informed the Officers that an investigation would be conducted and admonished them to "stay solid" and "remain cool" and not to do "anything foolish". He also advised them to cooperate with the investigation, to answer the Inspector's questions and not to interfere with the investigation. Finally, he advised the Officers of their right to Union representation during the investigation. Mr. Moreau denied hearing Mr. Dvorak say: "We don't need a rat on this one." After addressing the Officers at the elevators, Mr. Dvorak met with Messrs. Moreau, Gordon and Patrick, all of whom were Union Stewards, to request that they make themselves available to any Officer requiring Union representation during the investigation. He told them, in accordance with an agreement with the Ministry, that they were entitled to be present as observers only and could in no way "impede, interfere with or obstruct" the investigation. He also asked for their assistance in quelling rumors of an illegal walkout. Mr. Proctor said that he felt pressured to take a Union Steward into the Ministry's investigation and, moreover, to maintain silence as to what happened on the 5C West unit. Others, including Mr. Davidson, evidently did not feel the same pressure since they attended the interview with Inspector McMaster wi thout Union representation. In any event, Mr. Davidson wished to avoid taking in a Union Steward as he intended to implicate six of his fellow Officers in the assault on Inmate Stalteri, which he did in an interview with Inspector McMaster on December 8th. Inspector McMaster took notes of the meeting and prepared a statement for Mr. Davidson's signature. Mr. Davidson signed the prepared statement and attested to the truth of i ts con tents. Mr. Proctor also met with Inspector McMaster on December 8th. On Mr. Proctor's version of the evidence, Mr. McKinnon approached him on the way to the meeting and inquired whether he had Union representation. Mr. Proctor said that he had arranged for Robert Gordon to represent him, which appeared to satisfy Mr. McKinnon. Subsequently, however, Mr. Gordon was excluded from the interview by the Inspector on the grounds that he was "too involved" in the case. (Mr. Gordon was one of the Officers who was implicated in the assault.) Once Mr. Gordon was excl uded, Mr. Proctor attempted to find another Union representative and ul timately requested representation from 1Yr. McKinnon. The Union version was diametrically opposed. According to Mr. Dvorak, Mr. Proctor approached him on December 8th requesting Union representation. Mr. Dvorak directed him to Mr. McKinnon who was handling the matter. According to Mr. McKinnon, Mr. Proctor approached him to request Union representation and not the other way around as Mr. Proctor claimed. On this version of the evidence, Mr. Proctor was very nervous and asked if Mr. McKinnon would represent him in the interview with the Ministry Inspectors. Mr. McKinnon said that he agreed to represent Mr. Proctor even though the evidence would indicate that Mr. Proctor had previously made arrangements to be represented by Mr. Gordon. In view of the undisputed fact that Mr. Proctor had already arranged for Union representation, it seems improbable that he would also request Union representation from Mr. McKinnon. Accordingly, Mr. Proctor's version of the encounter with Mr. McKinnon must be preferred. Nevertheless, it should be noted, on either version, that Mr. Proctor asked for Union representation and, even more significant for his claim of "coercion", that he specifically requested representation from Mr. McKinnon when Mr. Gordon was dis- qualified by the Inspector. 1 - Mr. McKinnon was permitted to attend the interview as an observer only and was not permitted to offer advice. According to Mr. Proctor, when he arrived in the interview, Mr. McKinnon sat down very close to him. As the interview progressed, he moved closer and placed his foot against Mr. Proctor's. Whenever he wanted to call attention to something Mr. Proctor was saying, Mr. McKinnon would tap against Mr. Proctor's foot or make a "thumbs up" or "thumbs down" gesture indicating approval or disapproval. In addition, Mr. McKinnon took out a pen and paper, which he cupped in his hand, and took notes -. of what Mr. Proctor was saying. According to Mr. Proctor, Mr. McKinnon flashed notes to him, including a message to "keep cool", and on one occasion flashed him the answer to a question Inspector McMaster was asking. (This question, which dealt with the number of inmates on the 5C West unit, was entirely innocuous.) Notwithstanding that he asked for Mr. McKinnon's representation, Mr. Proctor claimed that he was distracted by Mr. McKinnon's presence at the interview. On Mr. McKinnon's version of the evidence, he began taking notes only when the conversation between Inspector McMaster and Mr. ',-- Proctor became heated. (Evidently , Inspector McMas ter did not accept Mr. Proctor's claim that he, had not seen anyone strike the Inmate.) Although he admitted taking notes of the interview, Mr. McKinnon denied that he gestured to Mr. Proctor, either by flashing notes, making a "thumbs up" or "thumbs down" sign, tapping his foot or in any way attempting to coach or instruct Mr. Proctor. At the end of the inter- view, Inspector McMaster produced a Bible and Mr. Proctor swore an oath that his statement was true, although he testified at the hearing that it was not. Mr. Proctor claimed that he lied because Mr. McKinnon was writing down everything he said. Mr. Proctor signed the statement, which Mr. McKinnon refused to witness. Messrs. Proctor and McKinnon left the interview together. As they walked toward the sallyport doors (which is a double door system with a landing in between which prevents free access in and out of the institution), Mr. McKinnon congratulated him on his performance, saying that he had done "well" in the interview. Inside the sallyport doors, they encountered Ms. Tennant on her way to an interview with the Inspector. According to Mr. Proctor, Mr. McKinnon pointed to Ms. Tennant and said: "There goes our weak link right there." Then the sallyport doors opened and a group of Officers, including some of whom had just been suspended, walked toward Messrs. McKinnon and Proctor. According to Mr. Proctor, the mood was tense and some of the Officers began to yell obscenities. Mr. Proctor said that Messrs. Moreau and Lonsdale demanded to know "what the hell" Mr. Proctor had said to the Inspector. The response came from Mr. McKinnon who said: "He did fine; he did not implicate anyone." Mr. McKinnon then read to the Officers from the notes he had made of Mr. Proctor's interview and their anger abated. Mr. McKinnonls version was diametrical ly opposed. According to Mr. McKinnon, as they came to the area of the sallyport doors, they encountered Corporal Parish and Officer DIAndrea. In the presence of these Officers, Mr. Proctor asked to see the notes Mr. McKinnon had taken during the interview with Inspector McMaster. After reviewing the notes, Mr. Proctor made the assessment that he had not done badly in the interview and offered to show the notes to the two Officers whom they encountered. (Mr. Proctor denied either reviewing the notes or offering to read them to the Officers.) The Officers, who seemed interested only in knowing whether Mr. Proctor also had been suspended, declined to see the notes. As they had on the previous evening, Messrs. Proctor and Davidson spent the evening of December 8th at Mr. Proctor's home discussing the code for about four to four and one-half hours. However, Mr. Proctor testified that he was becoming increasingly dis- comfited about the statement he had given to the Inspector, which he claimed was false. Nevertheless, the next morning, Mr. Proctor thanked Mr. McKinnon for his representation and told him that he could not -. have "made it" (presumably through the interview) without his assistance. Early on the morning of December 9th, according to their evidence, Messrs. Moreau and Dvorak met with Mr. Dunbar to confront him with corr~plaints about the way the code was handled. In particular, Mr. Moreau asked (1) why some of the Supervisors had failed to respond to the code and why the Ministry was "covering this up"; (2) why the Supervisory Staff did not push the code button a second time, a practice which apparently had developed in serious situations and was a signal to all Officers to respond to the code; (3) why misconduct charges had not been laid against the two Inmates for fighting, which was normal procedure; (4) why the two Inmates had not been escorted to segregation, which was also normal procedure; and (5) why the "troublemakers" had not been removed from the 5C West unit (it is not clear whether this inquiry referred to the period before or after the code). According to Messrs. Moreau and Dvorak, Mr. Dunbar was angry at the accusations and said that he was in charge and that "heads are going - to roll on this one". He also informed them that Inmate Baxter would be removed from the institution two days later (a fact which is important in order to understand Mr. Moreau's subsequent actions). Although Mr. Dunbar had no recollection of this meeting, he did not deny that it might have taken place. The Board finds in fact that such a meeting did take place. Mr. Proctor claimed that some time on December 9th, Mr. Moreau asked him for a copy of his statement to Inspector McMaster, which Mr. Moreau denied. (Although Inspector McMaster gave each Officer a copy of the Officer's statement at the end of the interview, Mr. Proctor evidently did not get a copy of his statement until the following day.) When Mr. Proctor said that he did not have a copy, Mr. Moreau said: "That's O.K.; you were with (~r.) McKinnon." On the afternoon of December 9th, Mr. Proctor met with Sargeant Merrier and P.C. Murdoch of the Criminal Investigations Branch of the Metropolitan Toronto Police and, notwithstanding reservations about having given a false statement to the Government Inspector, gave substantially the same statement to the Police Inspectors. As a result of the interview, however, Mr. Proctor con- cluded that he would be blamed for the assault and, therefore, that he ought to give a new statement identifying the assailants. However, it was not until the next day that Mr. Proctor recanted his prior statement. On the morning of December lCth, Mr. Proctor attended on Superintendent Dunbar and "admi tted" to having given a false statement to the Inspector ostensibly because he was intimidated by his Union - representative. Mr. Proctor offered to make a new statement and to submit his resignation. Mr. Dunbar refused to accept the resignation but arranged to have another statement taken. On this occasion, Mr. Proctor was interviewed by Inspector McMaster in the presence of Inspector Smith of the Investigations Branch and in the absence of any Union representation. This time Mr. Proctor made a statement implicating five* Correctional Officers in the assault on Inmate Stal teri. At the conclusion of this meeting, Mr. Proctor encountered Mr. Moreau who asked why he had not taken a Union Steward to the second meeting with the Inspectors. Mr. Proctor said that the Inspectors were merely - confirming his earlier statenlent and so it was not necessary to have a Union representative present. According to Mr. Proctor, Mr. Moreau seemed satisfied with the answer. Meanwhile, on December 9th, Mr. Davi dson was interviewed by Sargeant Merrier and P. C. Murdoch of the Criminal Invest'gations Branch of the Metropolitan Toronto Police to whom he gave substantially the * For some reason, which is not material, Mr. Proctor 'implicated only five Officers in the assault although he had previously identified six Officers to Mr. Davidson. same statement as he had given to Inspector McMaster. Mr. Davidson said in direct evidence that after meeting with the Police Inspectors, he was confronted by Mr. Moreau (along with Messrs. Dvorak and McKinnon) who demanded a copy of Mr. Davidson's statement to the Police. Although Mr. Moreau persisted in his request, Mr. Davidson said that he was unable to comply as he had not yet received a copy of the statement. (Apparently, Mr. Davidson had arranged to obtain a copy of his statement at a later date in order to avoid having to produce the statement if confronted by the Union.) The Grievors evidently did not believe Mr. Davidson and became verbally abusive. Mr. Dvorak was especially critical of Mr. Davidson since other Officers apparently had received copies of their statements at the end of their interviews with the Police Inspectors. A1 though Mr. Davi dson attempted to avoid the confrontation by going into the lockerroom, the Grievors followed. (In cross- examination, Mr. Davidson claimed that the Grievors were already in the lockerroom when he arrived, which is consistent with the Grievors' evidence and inconsistent with Mr. Davi dson's own evidence in-chief.) The abuse continued, culminating only when Mr. McKinnon pushed Mr. Davidson against the locker, while at the same time calling him a "fucking rat" and a "fucking stool pigeon", epithets which had also been used by the other two Grievors. There was no allegation of physical aggression by the other two Grievors. The confrontation ended when Mr. Davidson left the lockerroom. On Mr. Dvorak's version of the evidence, it was he (rather than Mr. Moreau) who encountered Mr. Davidson on his way into the staff lounge. Mr. Dvorak said that Mr. Davidson was visibly shaken, waving his arms up and down and yelling at no one in particular: "she ratted on me", referring apparently to Ms. Tennant, and "they got me; they nailed me". Mr. Davidson then left the lounge and went into the staff lockerroom, which is immediately adjacent. Mr. Dvorak did not follow. On this version of the evidence, Messrs. McKinnon and Moreau were already in the lockerroom, along with Officer Gaston, when Mr. Davidson burst in yelling and swearing: "fucking Tennant; she's a fucking rat; keep her fucking mouth shut". Mr. Davidson then proceeded toward his locker, slamming the door open and shut in succession and swearing about "those rats", which was apparently a reference to Ms. Tennant and Mr. Simpson; "they have enough to hang me". Messrs. Moreau and McKinnon tried to reassure him, saying in effect that if he hadn't done anything, there was nothing to worry about. Mr. McKinnon categorically denied that he assaulted Mr. Davidson in the lockerroom or elsewhere. Messrs. Moreau, McKinnon and Gaston then left the lockerroom, leaving Mr. Davidson behind. Mr. Davidson encountered Mr. Dvorak on his way out of the lockerroom several minutes later. According to Mr. Dvorak, Mr. Davidson implored: "What do I tell the Inspectors without telling them anything?" Mr. Dvorak said that at first he tried to ignore the question. However, when the question was repeated, he could no longer ignore it, and he responded by telling Mr. Davidson not to "impede, interrupt or interfere" with the Ministry's investigation. Meanwhile, after leaving the lockerroom, Mr. Moreau went into the staff lounge where he spoke with Officers Tennant and Tucker, who were the Unit Officers assigned to the 5C West unit on the night in question. Mr. Moreau asked the Officers whether misconduct charges had been laid against the two Inmates who were involved in the fight. Mr. Tucker said that he was not aware of charges having been laid and asked whether he had the right to lay charges himself. Mr. Moreau advised the Officers of their right to lay charges but said that he left the choice up to them, which is consistent with Ms. Tennant's evidence. (Mr. Tucker did not testify.) For his part, Mr. Tucker decided to lay charges against both Inmates. Ms. Tennant was less decisive, saying that she wished to think about the matter. After speaking with both Officers, Mr. Moreau left the institution (his tour of duty was over) but returned several hours later for a reason which was unrelated to his employment. Prior to returning to the institution, Mr. Moreau telephoned Ms. Tennant. As Ms. Tennant was unavailable, Mr. Moreau left a message with the Control Room Officer, Dawn Haley. Ms. Tennant relayed a message that she wished to speak with Mr. Moreau in person. However, she was unavailable when Mr. Moreau came into the institution. Nevertheless, they did speak on the telephone from the institution. Ms. Tennant explained to Mr. Moreau that she was reluctant to lay charges against the Inmates as Lieutenant Simpson, the Shift Supervisor on the night in question, had recommended that charges be deferred. Nevertheless, Ms. Tennant agreed to witness Mr. Tucker's charge sheet on Inmate Baxter, which she then submi tted to Mr. Moreau. (She refused to witness the charge sheet on Inmate Stalteri, as it was evidently deficient in certain respects. ) Mr. Moreau atterr~pted to have the charges against Inmate Baxter investigated the same night by Corporal Steen. However, Corporal Steen considered the request to be irregular and refused to investigate the charges. On Corporal Steen's advice, Mr. Moreau submitted the charge sheet to the Lieutenant in charge of the shift with the request that the out of the institution the next day. Notwithstanding the urgent request, the Lieutenant was reluctant to investigate the charges as there was an investigation already in progress by the Ministry. However, he did agree to submit the charge sheet to the Superintendent. When Mr. Moreau inquired the next day, he discovered that no action had been taken on the charges. Nevertheless, Assistant Superintendent, Mr. Cummaford, to whom the inquiry was made, agreed to look into the charges and to report back to him. Mr. Moreau heard nothing further about the matter. Mr. Davidson claimed that during a supper break (i .e. between 5:00 p.m. and 6:00 p.m.) some time between December 7th and December 12th, he was summoned to the Shift Lieutenant's Office where Messrs. Dvorak, Moreau and McKinnon were reviewing the occurrence reports that had been filed with respect to the code. The Grievors said that it was important for them to know all the facts and that they were concerned because there were mi nor variances between Mr. Davi dson's occurrence report and the reports submitted by some of the other Officers. They also stressed the importance for the Officers to "hang solid". Mr. Davidson said that Mr. Dvorak was especially abusive, threatening him to "hang solid or else". On Mr. Davidson's evidence, the meeting lasted only a few minutes as he had to return to duty. According to the Ministry's records, Mr. Davidson worked continuously on the day shift from December 7th to December 12th and, therefore, could not have been on a supper break on any of the evenings in question. Messrs. Dvorak, Moreau and McKinnon all denied this incident. Messrs. Dvorak and Moreau were suspended for three days on Saturday, December 11, 1982; Mr. McKinnon was suspended on December 13th. On December 14th, each of the Grievors was interviewed cnnrxvrxCn1tr hsr Tm.-nnr+nu Cm;+h rrC +hn Tn~rr\c+;nrx+;nnr Dr>nr-h A1 thnllnh the Grievors each requested Union representation, the request was denied ostensibly because Inspector Smith wished to conduct his inves- tigation without "interference" from the Union, No statements were taken at any of the interviews, although all of the interviews were taped. Amazingly, the tapes were erased and no record of the interviews was retained. The Officers were advised at the outset of the purpose of the interview, which was to inquire into the alleged interference with the Ministry's investigation of the code on the 5C West unit on December 7 th. In the course of his interview, Mr. Dvorak was questioned about the circumstances of the code. However, he was unable to respond as he was not on duty on the night in question. He was also asked about an alleged incident in the staff lockerroom on December 8th. In this regard, Mr. Dvorak was asked if he had observed Mr. McKinnon assault an unidentified Officer in the lockerroom. He was also asked whether he had assaulted the Officer, whose identity was never revealed. Mr. Dvorak emphatically denied the accusation and offered to take a polygraph test. His offer was not accepted. For his part, Mr. Moreau was asked about his efforts to have misconduct charges laid against Inmate Baxter and about an alleged assault on a Correctional Officer in the staff lockerroom on December 8th (although the Officer was not identified). A1 though Inspector Smith claimed that Mr. Moreau was less than forthcoming, Mr. Moreau maintained that he answered all of Inspector Smith's questions and that he told the Inspector everything he knew. It is, of course, impossible to verify Inspector Smith's assertion as no record of the interview was maintained. Finally, Mr. McKinnon was confronted with the allegation that he had assaulted an Officer in the staff lockerroom on December 8th (although the victim was never identified). Mr. McKinnon denied the allegation. He was not confronted with the a1 legation that he interfered with Mr. Proctor during the Ministry's investigation (ostensibly to protect Mr. Proctor) although the Employer relied on this allegation as a ground for dismissal. After extending the original suspensions, the Employer dismissed the Grievors on January 11, 1983. In February, 1983, the Grievors were interviewed by the Criminal Investigations Branch of the Metropolitan Toronto Police about the alleged assault in the lockerroom on December 8, 1982, which they emphatically denied. Assault charges were never laid. Meanwhile, on December 9th, Officer Bradley submitted an occurrence report at the request of Lieutenant Simpson. The report was brief, a1 though not as brief as some, and significantly failed to identify any of the Officers who escorted Inmate Stalteri along the corridor although, by his own admission, Mr. Bradley was among them and although some of the Officers were readily identifiable. The report reads as follows: "Sir: On December 7, 1982 I was working the 4A unit on the 0800-1600 shift. At approximately 13:40 hrs a 5C code was announced over the P.A. I responded to the 5C unit. Upon my arrival at the 5CW grill (sic) door I noticed a number of officers escorting an inmate out of the 5CW unit. They proceeded to escort the inmate down the ha1 1. A1 1 of a sudden there was ye1 1 ing and screaming coming out of the 5CW unit. The officers put the inmate on the ground and responded to the trouble in 5CW. At this time officer Chafe was coming through the 5BC door. I went into the office and called for the nurse. I returned to the inmate and myself and Mr. Chafe administered first aid to the inmate. At no time did I see the officers using unreasonable or excessive force. The Nurse came up to the unit and the inmate was taken to the medical unit. Later in the day, Mr. Bradley was interviewed by Inspector McMaster of the Investigations Branch, to whom he gave substantially the same information. In response to direct questioning from Inspector McMaster, Mr. Bradley claimed that he did not see the assault on Inmate Stalteri and that he could not identify any of the Officers who had responded to the code except for Officer Chafe who had rendered assistance to the Inmate in the corridor. Mr. Bradley was interviewed again by Inspector McMaster on December 23rd. By this time, the Ministry's investigation was almost complete and Inspector McMaster was aware that the most serious injuries had taken place in the corridor and that Mr. Bradley was among the Officers who had escorted the Inmate along the corridor where the assault took place. In view of Mr. Bradley's proximity to the Inmate throughout the assault, Inspector McMaster did not be1 ieve Mr. Bradley's profession of ignorance about the ci rcums tances of the assault. Accordingly, Inspector McMaster continued to press for more informati on, which Mr. Bradley claimed he was unable to supply. The following day, Mr. Bradley was summoned to a meeting by lfr. Dunbar, who encouraged him to be more forthcoming. When this encouragement did not produce the desired result, Mr. Dunbar accompanied Mr. Bradley to an interview with Inspector Leutz of the Investigations Branch. As in the previous interviews, Mr. Bradley was unrepresented. The interview lasted approximately one hour and produced the following statement: " Statement of Mr. Bradley, CO-2 taken in the office of this writer on December 24, 1982 at approx 0800 hours. Present during this interview were Mr. Bradley, Inspector R J Porter and this writer. This statement concerns Mr. Bradley's alleged involvement in and withholding and/or concealing of information relevant to an incident that took place at approx 1340 hours on December 7, 1982 on the 5th Floor of Toronto East Detention Centre involving an assault on inmate #101-82-64755 Guiseppi Stal teri . Sir I responded to the code in the 5C unit, we entered through the 5B stairwell and proceeded through the 5BC door. The officers that responded from my floor, which was the 4th was (sic) myself and officer Fitzwilliam. When we reached the 5B door other officers joined us and we proceeded down the corridor to the 5BC door. I believe the door was open, I entered through the door and down the hallway. I reached the 5C grill (sic) door. Miss Tennant had the grill (sic) door open. I entered the grill (sic) door, I saw officer Davidson and officer Proctor holding a (sic) inmate, there were other officers present as well. 'The inmate was bent over, so I didn't know who it was. The unit seemed to be in a very hostile state, yelling and screaming, telling the officers such things as ' take your hands off him you fucking goof' , 'You all suck cocks.' The inmate was struggling at this time. I had just come through the grill (sic) door when this happened. The next thing I know I was being pushed out of the unit by a number of officers. They proceeded down the ha1 1, the inmate was slumped over and still struggling. I heard moaning noices (sic) while the inmate was being taken down the hall. I saw hands and arms moving about. The officers were in a circle with their backs to me slightly bent over so I couldn't see whose arms they were. At this time Im (sic) Stalteri was saying OK, OK. Suddenly there was yelling and screaming coming from the 5CW side. I wasn't sure what they were saying as we were down the hall. The officers let go of the inmate, and the inmate slumped to the floor. The inmate was coughing and snorting. I thought he was choking. The other officers left and proceeded down to the noises in 5CW. I then noticed blood coming from the nose of Stalteri and from his mouth. There was blood on the floor, it was about 2-3 inches in diameter. At this time officer Chafe was coming through the 5BC door. We put inmate Stalteri on his side in the recovery position. Officer Chafe asked me to call the nurse. I called the nurse, and then went back to the inmate and cleaned his nose and Iris mouth, so he could breath (sic) easier. A few minutes later the nurse showed up. She asked me what happened, and I said I think he was in a fight inside the unit. Inmate Stalteri tried to get up, saying he was OK but the nurse to (sic) told him to stay on the floor and relax. Someone brought a wheelchair and the inmate was taken to medical. Respectfully Submitted BILL BRADLEY Bill Bradley C0/2 Did you see anyone strike inmate Stal teri? No sir. Did you see hands swinging at inmate Stalteri? Yes sir. Did you strike or restrain inmate Stalteri? No sir. What were staff saying as they were restraining In Stal teri? 'Smarten up you fucking goof' . 'Smarten up you asshol e' and a1 ong those 1 i nes. Why did staff who were struggling to restrain a violent inmate finally just drop him to the floor and leave to go to the unit? Why did I/m (sic) Stal teri just quite (sic) struggling? He said OK OK. I guess he was willing to co-operate. Why did staff take the word of a previously reported violent i nmate? Everyone just left at once. Was that good judgement on the part of all those offi cers? No. What officers were restraining I/m (sic) Stalteri from the unit door to the point in the hallway were (sic) he was dropped to the floor? From what I saw Officer Davidson and Officer Proctor. Was inmate Stalteri subjected to the excessive use of force in the hallway outside the unit? No. Is there anything else you wish to add to this statement? The whole thing is that it happened so quick it was just seconds. I have read the above statement and have had the opportunity to add to or delete from any portion of this statement. I swear that this statement is true to the best of my knowledge and belief. Interview concl uded at 1026 hours. x Bill Bradley Taken and sworn CHARLES R. LEUTZ. A Commissioner, Etc. Province of Ontario, for Government of Ontario. Expires April, 1984 Witness : At the end of the interview, Mr. Bradley was suspended for three days pending investigation and ultimately dismissed for withholding or concealing information with respect to the assault on Inmate Stal teri. The allegation against the Grievors is twofold: (1) violation of Section 22 of the - Ministry of Correctional Services Act, i .e. obstruction of the Ministry's investigation of the assault on Inmate Stalteri (in the case of Messrs. Dvorak, McKinnon and Moreau) and withholding or concealing information with respect to the assault (in the case of Mr. Bradley); and (2) breach of their trust as Correctional Officers. For ease of reference, Section 22 is reproduced again as follows: "22. The Minister may designate any person as an inspector to make such inspection or investigation as the Minister may requi re in connection with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection or investigation or withholds, destroys, conceals or refuses to furnish any information or thing required by an inspector for the purposes of the inspection or investigation." With respect to Section 22, the allegation against Messrs. Dvorak, McKinnon and Moreau is that they interfered with or obstructed the Ministry's investigation of the assault on Inmate Stalteri. In support of this allegation, the Employer submitted the evidence of Officers Proctor and Davidson, both of whom claim that they were intimidated by the Grievors in the course of the investigation. The Board has had considerable difficulty with the evidence of Messrs. Proctor and Davidson, both of whom were present during the assault on Inmate Stalteri and claim to be able to identify the assailants. This case does not concern the assault on Inmate Stalteri except to note that Messrs. Proctor and Davi dson collaborated in identifying the assailants. The collaboration took place in the course of two private conversations, including one immediately following the assault, during which Mr. Proctor identified six Officers as the assailants of Inmate Stalteri. The following day, six Officers were implicated by Mr. Davidson, a matter of no mere coincidence. In the course of the same conversation, Mr. Davi dson stressed the importance of discrediting Ms. Tennant, who was standing at the grille door and presumably would have seen the entire assault. In view of the collaboration between Messrs. Proctor and Davidson, their credibility is seriously damaged. Accordingly, the Board has scrutinized their evidence with particular care and has accepted their evidence (and, in particular, the evidence of Mr. Davidson, which the Board considers the more suspect) only where it was confirmed by the evidence of other witnesses or where the inference is irresistible that the evidence is true. The essence of the allegation of "obstruction" is that Messrs. Dvorak, McKinnon and Moreau intimidated other Officers into withholding information about the assault on Inmate Stalteri , including information as to the identity of the Inmate's assailants. With respect to this allegation, there were specific instances of obstruction or intimidation raised against each of the Grievors. With respect to Mr. Dvorak, it is alleged (1) that on December 8th at the elevators, he tried to intimidate a group of Officers to remain silent with respect to the assault on Inmate Stalteri and to take a Union representative into the investigation conducted by the Ministry; (2) that on December 9th in the staff lockerroom, he tried by intimidation to obtain a copy of Mr. Davidson's statement to the police Investigators; and (3) that on a supper break on an unspecified date between December 7th and December 12th, he tried to intimidate Mr. Davidson into remaining silent with respect to the assault. Messrs. McKinnon and Moreau are also implicated in the second and third instances and their involvement is dealt with herein. With respect to the first allegation, the evidence is that Mr. Dvorak addressed a group of his fellow Officers at the elevators on the first floor prior to the commencement of the Ministry's investigation into the code on the 5C West unit. By his own admission, Mr. Dvorak advised the Officers of their right to Union representation during the investigation and implored them not to "interfere with, obstruct or impede" the investigation. He also counselled them to "stay solid" and "keep cool". According to Mr. Proctor, Mr. Dvorak also said: "We don't need a rat on this one", a particularly damaging statement if it was made. However, there was no corroboration of this statement from any of the other Officers who were in the vicinity of the elevator. In the absence of corrobot-ating evidence, the Board is not prepared to find that this statement attributed to Mr. Dvorak by Mr. Proctor was in fact made. However, by his own admission, Mr. Dvorak made the other statements attributed to him, i.e. he advised the Officers of their right to Union representation during the inves- tigation and told them to "keep cool" and "stay solid". Obviously, there is nothing wrong with the first statement. The Ministry has agreed in certain circumstances to a1 low Union representation where requested during the course of a Section 22 investigation. Mr. Dvorak's advice to "take in a Union representative" was consistent with the right to request Union representation and in no way improper. Nevertheless, Mr. Proctor felt intimi dated, presumably because he did not wish to have a Union representative hear what he was telling the Inspector. Mr. Proctor may have felt that this statement was intimidating; others did not. Nevertheless, it is the intention of the person making the statement and not the effect on the person hearing it which determines whether or not there is intimidation: see Regina v. Tortolano, Kelly and Cadwell (1975), 28 C.C.C.(2d)562 (O.C.A.). In this regard, although Mr. Proctor alleged that Mr. Dvorak had an ulterior motive in advising the Officers of their right to Union representation (presumably to coerce the Officers into withholding information from the investigation), no ulterior purpose was in fact proven. Indeed, whatever Mr. Proctor may have felt, there was no compulsion to take in a Union representative, which was left to the discretion of the individual Officer. For these reasons, the Board finds that Mr. Dvorak's advice to take in a Union representative does not constitute intimidation. In a different category is his statement to "stay solid". In the course of his evidence, IYr. Dvorak advanced two interpretations of the term "solid". At one point, he suggested that the term refers to a "solid team of professionals", i .e. strong Correctional Officers, an interpretation which, in the Board's view, is naive in the extreme. Subsequently, he clarified his evidence, suggesting that the term "solid" refers to a "solid team of professionals who protect each other's interests" (emphasis added), an admission which comes perilously close to counselling a cover-up. However, an equally credible explanation of this interpretation is that the term "solid" was an expression of Union solidarity intended merely to make the Officers aware that the Union was behind them in what was admittedly a difficult set of circumstances. The Board has wrestled with the inference to be drawn from this statement and, a1 though far from satisfied in the matter, must give the benefit of the doubt to the Grievor. In our view, the term "solid", when used in conjunction with the common expression of encouragement, "keep cool", is ambiguous. In the absence of evidence to resolve the ambiguity, the Board cannot draw the inference that Mr. Dvorak interfered with the investigation bv tellins the members hi^ to "stav solid". Nevertheless, the Board is unable to accept the suggestion that Mr. Dvorak addressed a group of his fellow Officers and admonished them, as if by rote, not to "obstruct, interfere with or impede" the Ministry's investigation in order to avert a walkout. The Board heard the evidence of Mr. Dvorak and his demeanour in this regard was simply not convincing. Moreover, no other witness referred to the threat of a walkout (except Mr. Moreau who testified on the basis of information given to him by Mr. Dvorak), an important statement, if it was made, since Correctional Officers are prohibited from engaging in a strike. Finally, it is improbable that the Officers would threaten a strike prior to the start of the shift on December 8th when there had been no indication as to how the Ministry would react to the code. Accordingly, the Board does not accept the assertion implicit in Mr. Dvorak's evidence that he encouraged cooperation with the Ministry of Correctional Services Act. More will be said about this later. The second allegation is that Mr. Dvorak, along with Messrs. McKinnon and Moreau, tried to intimidate Mr. Davidson into producing a copy of Mr. Davidson's statement to the Police Inspectors. The evidence in this regard is particularly disturbing. According to Mr. Davidson, the three Grievors confronted him in the staff lounge on the afternoon of December 9th and demanded a copy of his statement to the police. When Mr. Davidson said that he did not have a copy of the statement, the Grievors became suspicious and began to insult him. The insults continued in the lockerroom, where the Grievors had followed Mr. Davidson, and culminated with Mr. McKinnon pushing Mr. Davidson against a locker. The Union's evidence was diametrically opposed. According to the Union, Mr. Dvorak encountered Mr. Davidson on his way into the staff lounge. According to Mr. Dvorak, Mr. Davidson was extremely agitated and said something to the effect that Ms. Tennant had informed on him and that they had "enough to hang" him. He was still swearing when he went into the lockerroom where he encountered Messrs. McKinnon and Moreau in the presence of Officer Gaston. Although Messrs. McKinnon and Moreau tried to reassure him, Mr. Davidson was too agitated to be consoled. He was still overwrought when they left him in the lockerroom several minutes later. When he eventually came out of the lockerroom, Mr. Davidson met Mr. Dvorak, whom he had encountered on the way in, and asked him in an urgent manner: "What do I tell the Inspectors without telling them anything?" Mr. Dvorak, who tried to convince the Board that he was shocked at the suggestion, said that at first he ignored the question. However, when the question was repeated, Mr. Dvorak said that he warned Mr. Davidson not to "obstruct, interfere with or impede" the investigation. The evidence of both sides cannot be reconciled. On the one hand is the evidence of Mr. Davidson who claims to have been intimidated by the Union to the point of physical abuse to reveal what he had told the Police about the assault on Inmate Stalteri. On the other hand is the Union's depiction of Mr. Davidson as inconsolable, having found out that he had been implicated in the assault, and desirous of the Union's help in extricating himself. In the Board's view, although neither version of the evidence is entirely satisfying, in the final analysis, the Employer's evidence must be preferred. A1 though the Union's evidence is in some respects imitative of the truth, in that some of the facts recited were consistent with the truth, the story as a whole is not. In particular, it is highly unlikely that Mr. Davidson would have a~~roached Mr. Dvorak and aqk~d him what he rn~rld t~ll th~ TnsnPrtnrq "without telling them anything" since Mr. Davidson had already "told them everything" by implicating his fellow Officers in the assault. Furthermore, there is no indication that Mr. Davidson had ever been implicated by Ms. Tennant or Corporal Sirnpson. Accordingly, it is beyond belief that he would burst into the lockerroom, claiming that he had. For these reasons, the Board cannot accept the Union's version of the lockerroom incident. However, the Board also does not accept in total Mr. Davidson's version of the encounter, particularly with respect to the alleged push. Although Mr. Davidson claimed during the investigation that he had received only a gentle shove, the evidence at the hearing was in no way suggestive of a gentle shove. Although any form of push or shove constitutes an assault, the Board would have expected Mr. Davidson to have been more candid with respect to the degree of force used. In view of Mr. Davidson's lack of candour and the surrounding circumstances, the evidence is simply too tenuous to conclude that a push of any sort took place. The evidence is sufficient, however, to conclude that there was some attempt on the part of the Grievors to obtain a copy of Mr. Davidson's statement to the Police and that the encounter became acrimonious. All three Grievors are implicated in this exchange. Finally, it was alleged that Mr. Dvorak, along with Messrs. McKinnon and Moreau, intimidated Mr. Davidson on a supper break between 5:00 p.m. and 6:00 p.m. on an unspecified date between December 7th and December 12th. Mr. Davidson said in essence that on this occasion, the Grievors, and especially Mr. Dvorak, were verbally abusive and admonished him to "hang solid". Mr. Davidson claimed that the -. . .~ . . . However, the uncontradicted evidence, taken from the Minis try records, is that Mr. Davidson was not on duty over the supper break on any of the days in question and so, even if he was in the institution (which is highly unlikely), he would not have been returning to duty after the alleged incident with the three Srievors. Nothing more need be said about this incident. If it occurred, better evidence ought to have been adduced. The Board absolves the Grievors with respect to this allegation. With respect to Mr. McKinnon, it was alleged (1) that on December 9th in the staff lockerroom he tried to intimidate Mr. Davidson into producing a copy of his statement to the police (known as the "lockerroom incident"). (For reasons already given, there was insufficient evidence to find a push by Mr. McKinnon although there was evidence that, along with the other two Grievors, Mr. McKinnon made persistent and aggressi ve attempts to obtain a copy of Mr. Davidson's statement.) ; (2) that he tried to intimidate Mr. Davidson on a supper break some time between December 7th and December 12th. (This allegation has not been proven. ) ; and (3) that he tried to intimidate Mr. Proctor during a meeting with Inspector McMaster. The allegation in this regard is that Mr. McKinnon attended the interview at the request of Mr. Proctor, sidled up to Mr. Proctor and signalled him by flashing notes, making "thumbs up" or "thumbs down" gestures, and tapping his foot. In addition, he took notes of the interview. In the Board's view, it was perfectly proper for Mr. McKinnon in his capacity of Union representative to have taken notes of the interview. The meaning to be attributed to the gestures is more equivocal. In the Board's view, although the gestures were intended to provide encouragement (e.g. the note to "keep cool"), they fell short of actual coaching. Nevertheless, Mr. Proctor claimed that he was intimidated by the gestures. In the Board's view, it was not the gestures which caused Mr. Proctor to be intimidated but the mere presence of Mr. McKinnon in the interview. (A1 though Mr. Proctor invited Mr. McKinnon to represent him, it seems clear that this invitation was extended in order to divert suspicion from Mr. Proctor. It is not necessarily inconsistent with the extension of this invitation that Mr. Proctor was intimi dated by Mr. McKinnon's presence in the interview.) So long as there was a Union representative in attendance, Mr. Proctor was reluctant to identify the assailants of Inmate Stalteri. However, this is not because of anything Mr. McKinnon did or did not do. It is because of an insidious ethic of si lence which has developed at the Toronto East Detention Centre irrespective of anything Mr. McKinnon may or may not have done. In this atmosphere, it is not surprising that Mr. Proctor viewed the gestures as intimidation. However, the Board finds that the gestures were simply too arr~biguous to conclude that they were intended as such. The allegations with respect to Mr. Moreau are (1) that he tried to intimidate Mr. Proctor into providing a copy of his statement to the police in the lockerroom on December 8th. (Mr. Moreau is implicated along with Messrs. Dvorak and McKinnon in an aggressive attempt to obtain a copy of this statement.); (2) that he tried to intimidate Mr. Davidson on a supper break between December 7th and December 12th. (This charge has not been proven.); (3) that he asked Mr. Proctor for a copy of the statement that he had given to Inspector McMaster. (However, Mr. Moreau did not pursue the matter when Mr. Proctor said that he did not have a copy as Mr. Proctor had attended the interview with Mr. McKinnon. A1 thouah Mr. Moreau denied this allegation, the Board accepts that it was true since it is consistent with attempts by Mr. Moreau and others to obtain copies of statements given during the inves- tigation into the assault on Inmate Stalteri. Nevertheless, in the absence of evidence of intimidation or impropriety, the mere attempt to obtain a copy of an employee's statement is not misconduct as the statement was of potenti a1 value to Mr. Moreau in his capacity of Union Officer.); (4) that, along with Officer Lonsdale, he confronted Mr. Proctor to find out what information he had given to the Ministry Inspector; and (5) that he tried to get Officers Tennant and Tucker to file misconduct charges against Inmate Baxter. The evidence with respect to the fourth allegation is diametrically opposed. According to Mr. Proctor, fol lowing an inter- view with Inspector McMaster, he was confronted by Officers Lonsdale and Moreau. The Officers were abusive and aggressive in their efforts to find out what he had told the Inspector. The abuse subsided, however, when Mr. McKinnon assured them that no one had been implicated by Mr. Proctor. On the Union's version of the evidence, it was Officer D'Andrea and Corporal Parish (rather than Officers Lonsdale and Moreau) whom Mr. Proctor encountered following the interview with Inspector McMaster. Furthermore, on this version of the evidence, the encounter was calm and uneventful. Although Mr. Proctor offered to apprise the Officers of the substance of his interview by reading to them from the notes taken by Mr. McKinnon, the Officers declined the offer. In the Board's view, in light of the atmosphere surrounding the code, the Union's version is highly improbable. Accordingly, notwithstanding the Board's reservations about the credibility of Mr. Proctor, the Board finds that his evidence is more probable than the Union's evidence and concludes, therefore, that Mr. Moreau in fact confronted Mr. Proctor following his interview with Inspector McMaster in an attempt to find out what Mr. Proctor had told the Inspector. The facts with respect to the fifth allegation are admitted, i.e. that Mr. Moreau attempted to have misconduct charges laid against the Inmates involved in the fight and, in particular, against Inmate Baxter. However, the Union categorically denied that this attempt constituted intimidation. In addition to assessing discipline against an inmate, the purpose of laying misconduct charges is to protect the Officers who may have been involved in the matter in the event that subsequent proceedings are initiated with respect to the misconduct. Accordingly, it would appear that Mr. Moreau wanted the misconduct reports filed in order to protect the Officers who had responded to the code. If Mr. Moreau's purpose was to have a record of the facts in the event of subsequent legal proceedings, then his actions cannot be impugned. If, however, the purpose was to shift the blame for the assault from the Officers to Inmate Baxter, then his actions were improper. Although the Board is not satisfied in this matter, in our view, it would not be safe on the evidence tendered to draw the inference that Mr. Moreau attempted to have the charges laid in order to divert suspicion away from the Officers. Accordingly, a1 though the Board questions Mr. Moreau's excessive zeal in having the charges laid, it cannot be concluded that his actions in this regard were improper. In summary, with respect to the allegations under Section 22, the Board finds (1) that the three Grievors made an inappropriate and aggressive attempt to obtain a copy of Mr. Davidsonls statement to the Police Inspector; and (2) that Mr. Moreau badgered Mr. Proctor into revealing what Mr. Proctor had said to the Ministry Inspector. In the Board's view, the Grievors' actions fell short of actual obstruction or interference with the Ministry's investigation. Nevertheless, thei r actions obviously were not intended to promote the investigation not- withstanding that, in the Board's view, the Grievors had an obligation, which may be implied from their employment relationship and from the provisions of Section 22, to assist in the investigation. By coercing at least one fellow Officer into producing a copy of his statement to the Police, the Grievors were in breach of this obligation. This does not mean that the Grievors were not entitled to request copies of the statements given by the Officers in the course of an investigation in order to assist them in their representational responsibilities. However, they were not entitled to procure these statements by use of coercion and for purposes unrelated to their Union activities. In the instant case, it seems clear that Mr. Davidson's statement was being sought by the Grievors for a purpose unrelated to the legitimate exercise of their responsibilities as Union Officers. Furthermore, the effort to secure Mr. Davidson's statement cannot be characterized as a simple "request" but is more properly viewed as an aggressive attempt to coerce a fellow employee, which is serious misconduct. In the same category is Mr. Moreau's confrontation with Mr. proctor following his interview wi th Inspector McMaster. A1 though the confron- tation on this occasion was brief and reasonably non-threatening, the Board finds that it did constitute a coercive attempt to find out what Mr. Proctor told the Inspector and as such was improper. In addition to this blatant misconduct, there are other grounds for discipline against Messrs. Dvorak and McKinnon based on the leadership role they assumed duri np the investigation. More particularly, the Union President, Mr. Dvorak, addressed the bargaining unit members at the outset of the investigation to offer advice as to their rights and obligations during the course of the investigation. Mr. McKinnon, as Chief Steward, represented other Officers in the investigation. Of course, the assumption of leadership, whether by a Union Officer or otherwise, is not improper. Nor is it cause for discipline. However, having assumed a leadership role, the Grievors must accept the responsibility that comes with leadership and recognize that their actions would be viewed as more authoritative than the actions of other en~ployees. Viewed from this perspective, the Grievors were required by example or otherwise to encourage cooperation with the investigation. In the Board's view, this requirement was not fulfilled by Mr. Dvorak's advice to his fellow employees to "stay solid" and by Mr. McKinnon's gestures to Officer Proctor during the interview with Inspector McMaster. At best, these veiled references and ambiguous actions could have been misinter- preted by the other Officers who look to the Grievors to provide leadership and di rection. Accordingly, a1 though these words and gestures fall short of obstruction or interference with the inves- tigation under Section 22, they do constitute a breach of the Grievors' obligation to assist with the investigation and, as such, were a breach of their trust as Correctional Officers. This finding is not intended to impose a higher duty on the Grievors because of their Union office. It is intended only to recognize that there is a responsibility on all Correctional Officers to assist in the inves- tigation under Section 22 and an even greater responsibility on those Officers who assume leadership roles. The Gri evors were di smi ssed from thei r employment for breach of Section 22 and breach of their trust as Correctional Officers. With respect to Messrs. Dvorak, McKinnon and Moreau, the allegation under Section 22 has not been proven although there is proof of breach of trust. This is a serious matter, although far less serious than the allegation which the Employer sought to prove. Accordingly, although a substantial penalty is warranted, in the Board's view, dismissal was excessive in all of the circumstances. In view of the Grievors' clean records and length of service, the Board is of the view that a three-month suspension is just and reasonable. This penalty is intended to convey the seriousness with which the Board views the Grievnrs' misconduct. However, in light of the quality of the evidence tendered, a more substantial penalty cannot be supported. The allegation with respect to Mr. Bradley is fundamentally different. It is alleged that Mr. Bradley concealed or withheld information from the investigation notwithstanding that he was beside the Inmate when the assault in the corridor took place. In fact, Mr. Bradley's occurrence report, which was prepared at the request of Lieutenant Simpson, was woefully inadequate, omitting any reference to either the assault or the assailants. The statement given in the first instance to the Inspector was equally deficient. However, in the second interview with the Inspectors on December 23rd, Mr. Bradley was more forthcoming, identifying both Messrs. Proctor and Davidson as among the group of Officers escorting the Inmate along the corridor. He also said that he saw "hands and arms swinging" at Inmate Stalteri, a1 though he continued to deny witnessing an assault. Given the proximity of Mr. Bradley to the Inmate and the visibility of some of the escorting Officers, it is hard to believe that he did not see more. In particular, it strains belief that he did not at least recognize Officer Bedeau, the only black Officer among the escorting group, and that he did not see anyone assault the Inmate. In view of his proximity to the Inmate, it is impossible to conclude anything except that Mr. Bradley did not tell the Inspectors everything he knew, which constitutes concealment within the meanirlg of Section 22 of the - Ministry of Correctional Services Act. However, he did provide some information (albeit reluctantly) and, in the Board's view, this puts his case in a different category than the cases of Messrs. Gordon, D'Andrea and Lonsdale dealt with in the Bedeau decision. Mo?eover, he is also in a different category than ,others who were not part of tne escorting group of Officers. Although it is impossible to believe that some of the Officers did not see more than they admitted, absence of disclosure on their part cannot absolve Mr. Bradley of misconduct as they were not in analogous ci rcumstances to Mr. Bradley. In fact, there were no other Officers in analogous cir- cumstances who escaped punishment. More particularly, Mr. Bradley and others who have been disciplined, were among the group of Officers who escorted the Inmate along the corridor and, therefore, were in a unique position to observe the assault. Those who were not disciplined had a poorer perspective on the assault. Accordingly, even though these Officers also could have been more forthcoming, their failure to do so is in no way related to Mr. Bradley's obvious dereliction of duty. In all of the circumstances, including Mr. Bradley's unblemished record and length of service, the Board is of the view that a three-month suspension is warranted for Mr. Bradley. Accordingly, the Board awards that the dismissals be striken from the records of Messrs. Dvorak, McKinnon, Moreau and Bradley and that suspensions of three months each be substituted. The Grievors are entitled to retain all of their seniority and benefits for the period of the improper dismissal and to be reimbursed for compensation lost in excess of three months. The Board remains seized in the event that there are difficulties in applying this award. DATED AT TOROIVTO this 27th day of November, 1984. M.K. Saltman - Vice-Chairman - d- - W. Walsh - Member 4- aildendun to follow) B. Lanigan - Member