GSB#2008-2448, 2010-0286, 2010-0287, 2010-1623, 2010-1796

UNION#2008-0247-0001, 2010-0247-0002, 2009-0247-0004, 2010-0247-0003, 2010-0247-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Johnston)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Scott Andrews Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Ministry of Government Services Centre for Employee Relations Staff Relations Officer

HEARING

May 25, 2011.

Decision

1The grievor, David Johnson, has been a Cook II at the Brantford Jail for 14 years. He has filed four grievances concerning the failure of the employer to call him in for overtime hours, and one challenging a 5 day suspension. The parties referred these grievances to mediation/arbitration in accordance with Article 22.16 of the collective agreement. The parties have agreed that I have the jurisdiction to decide these matters and asked for a decision without prejudice and precedent and without reasons.

2With respect to the overtime grievances, the grievor claims that the occasions when the other cook II or the casual cook was off duty, he should have been offered the extra hours. According to Mr. Johnson, the past practice has been to call in the other Cook II to replace them at overtime hours. However, when the other cook was absent on the dates named in the grievances, the Cook III decided to do the work himself, thereby avoiding overtime.

3Mr. Johnson contends that those actions are a violation of the collective agreement and the overtime protocol agreement that the parties have executed. He should have been called in to work those hours.

4In the first instance, there is no contractual obligation on the employer to schedule overtime hours in the kitchen. Indeed the management rights clause gives the employer the expansive right to manage the operation of the institution, including scheduling the hours of work, unless there is a specific restraint or limitation in the collective agreement. I cannot find any such provision in either the collective agreement or the overtime protocol. There are provisions that dictate how the overtime is to be distributed in both documents but those provisions assume the overtime exists. The decision as to whether the work assignment is to be done using regular hours or overtime is for the employer to determine. I note that the Cook 1 is a member of the bargaining unit and there is no allegation the employer has improperly deprived union members of the overtime. Having considered the submissions of the parties I have concluded that I must dismiss this grievance.

5The second grievance concerns a five day suspension for an incident that took place on June 27, 2008. On that day the grievor was involved in a verbal altercation with inmate M and, during the escalating tension, lost his temper and yelled at the inmate. He was given a five day suspension for inappropriate action and comment. He acknowledges that he did use profanity with the inmate, including calling him “a fucking piece of shit”. He apologized to the inmate almost immediately. He denies, however, making an ethnic slur about the aboriginal status of the inmate.

6The Employer takes the position that the grievor’s actions were a violation of the zero tolerance policy about discrimination and deserving of a significant penalty.

7There is no argument that some discipline is deserved. The question for me is whether he did in fact make the racial comments he is alleged to have made and, if so, whether the five day suspension was an appropriate response.

8The Employer did investigate the events of that day and had those who were interviewed completed written statements of their observations. The first mention of a racial slur is found in the statement of Tim Barnes, Cook III. He says the grievor came into his office and said “stupid fucking Indian”. Mr. Barnes stated that the comment was made in such a loud voice that the inmates must have heard it. The four inmates who were working in the kitchen that day also completed written statements. Three of them said they did not hear any racial comment during the exchange. One heard the grievor call inmate M a “fucking Indian”. It was the conclusion of Mr. DuCheneau, the Shift Supervisor who conducted the investigation that, notwithstanding the discrepancy in the accounts and the uncertainty of the grievor’s location, the allegations had been substantiated. I note here that when confronted with the actual comment he was alleged to have said, the grievor replied that he did not say that or that he did not recall making the statement.

9I find myself unable to say with certainty that the grievor made the racial statement he is accused of uttering. Not everyone in the kitchen heard the comment, even though Mr. Barnes stated that it was made in such a loud voice everyone in the kitchen should have heard it. In this process, it is not a matter of assessing credibility since none of the testimony is tested under oath. It is a matter of determining the most plausible scenario. In the circumstances and the significance of a five day suspension on the record, I accept the grievor’s version.

10The Employer stated in its disciplinary letter to the grievor that it took into account the nature and seriousness of the substantiated allegations, his 10 years of service and the fact he had accepted partial responsibility for his actions. More specifically, he acknowledged immediately his improper and unacceptable behaviour and apologized to inmate M and the other inmates who were present during the incident. I have considered the same factors in assessing the penalty. He deserving of discipline for swearing at inmate M and acting in an unprofessional manner. Since I have found he did not make a comment of a racial nature, Employer’s discipline is excessive.

11The Union and the grievor acknowledge that some discipline is appropriate and I agree. As far as I know, the grievor has no disciplinary record for his 10 years of service. In these circumstances I rescind the five day suspension and replace it with a letter of warning.

12I remain seized in the event the parties have difficulty in implementing this award.