GSB#2010-1479

UNION#2010-0368-0059

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Draper)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Legal Services Branch Counsel

HEARING

April 29, 2014

Decision

1This grievance involves an incident that occurred on April 17, 2010 at the Central East Correctional Centre in Lindsay, Ontario. The hearing was held on April 29, 2014. Pursuant to article 22.16, we adopted an expedited procedure and the decision has no precedential value.

2The salient facts are as follows. The grievor was working the 07:00 to 1900 shift. It came to his attention that on the Unit he was working the inmate population had been mixed. That is, there were both general population and protective custody inmates on the same unit. He concluded, after discussions with coworkers, which did not include any member of management, that the two inmates that were in the minority should be moved to a Unit that only housed that classification. At the hearing, he had no recollection of whether the two inmates were general population or protective custody inmates. He had many other vivid recollections of the events. However, tellingly, he had no recollection of the fundamental basis upon which he had acted.

3The OM 16 responsible for the unit, hereafter the supervisor, was adjudicating inmate misconducts when he noticed that there was triple bunking occurring. He inquired and was told by the grievor that the triple bunking was the result of his decision to move the two inmates.

4The grievor was told to move the two inmates back to the Unit from which they had come in order to avoid triple bunking.

5The grievor responded that mixing the two classifications of inmates in one living area was contrary to ministry policy and possibly unlawful. He proposed several alternative solutions to the issue. It is common ground that the supervisor considered each of the proposals, in turn, and sought guidance from more experienced managers as to each of the proposals. They were rejected in turn and the order to return the two inmates to the Unit from which they had come was reiterated.

6An interesting side issue is that the supervisor had recently been promoted to that position. It was his feeling that his authority was being challenged because he had recently been promoted from the bargaining unit to management. This the grievor vehemently denied.

7The Supervisor filed an occurrence report on April 21, 2010. In his testimony he said that the grievor's suggestions were presented in a confrontational manner accompanied with yelling and the waving of his arms at times. He did not include that in his occurrence report because, as he said, he did not think that was necessary.

8As a result of the repeated order, the grievor exercised his right to refuse unsafe work pursuant to the Occupational Health and Safety Act, R.S.O. 1990, C. O.1., hereafter OHSA. As set out in the supervisor’s evidence, "CO Draper questioned my orders and told me that what they were doing was "Corrections 101". He and other correctional officers refused to follow my direct order not to triple bunk the inmates and indicated that they were exercising their rights to refuse work under the OHSA. An investigation with the worker Health and Safety Representative was commenced. This resulted in a telephone conference call, which included a Ministry of Labour inspector who determined that the criteria for a work refusal had not been met.

9As the grievor put it in his evidence, "This left me no alternative but to exercise my right to refuse this unsafe work and incompetent management under the Occupational Health and Safety Act. I asked for a Health and Safety Representative and I logged in my Logbook and verbally stated to Mr. Merriam, the supervisor, that I believed his instruction was not a competent one I also stated that this instruction may be unlawful. Mr. Merriam acknowledge my refusal of unsafe work and incompetent management. He informed me he would contact the Ministry of Labour”.

10In his evidence, the grievor said that at the time he relied upon a memorandum he had received dated April 16, 2010, the subject of which was "Evacuation Plan For 2 Pod”. The memorandum clearly deals with evacuation of the pod. In particular, the grievor relied upon the following:

11All segregated offenders from 2A and 2B shall be escorted to A&D and secured in the discharge cells. Protective Custody and General Population are not to be secured or escorted together. They can be housed together in the discharge bullpens based on their classification (PC with PC, GP with GP) the GDM will assigned two Correctional Officers to maintain supervision of these offenders while they are secured in the cells.

12This memorandum clearly has nothing to do with whether or not mixed classification inmates should generally be housed on the same Unit. It is to be noted that in the circumstances existing on April 17, 2010 the two classifications of inmate were not intermingling. They were separately secured in their cells. Indeed, that would be consistent with the housing requirements in A&D under the evacuation plan.

13On the day in question, management made a choice between triple bunking the two inmates and having them housed on a unit with another classification. Upon investigation, the Ministry of Labour determined that there was no contravention of the OHSA.

14The Employer sent a letter to the grievor dated May 3, 2010 advising him that a meeting had been scheduled for Tuesday, June 8, 2010 to respond to allegations that he had refused an Operational Manager’s direct order. The allegations were set out, and, it seems, that it is the tone of the allegations that has concerned the grievor. By letter dated May 28, 2010 the grievor was advised that the allegation meeting had been canceled and replaced by a fact-finding meeting scheduled for June 3, 2010. That meeting took place and seemingly was a lengthy meeting at which the entire incident was canvassed. The grievor received a third letter dated August 27, 2010 that reaches the conclusion that the grievor "had participated in the movement of offenders without explicit authorization from an Operational Manager that created overcrowding in a cell." It also set out that, "I understand that on occasion offenders are moved for inconsequential reasons prior to a manager's approval but, these events differ because they are random and have no collateral effects. After careful consideration of the information you provided me and the information I collected, I've decided that this letter will serve as closure to this issue. This is not to minimize the seriousness of this event but, to look forward so that in the future you will inform the unit manager of contentious issues as they arise in order that management may manage situations collaboratively with correctional staff."

15One concern the grievor seems to have with the last letter is that it didn't reflect all that had gone on in the two hour meeting. He also remains essentially unrepentant that he did anything wrong. However, the thrust of the Union argument is that once a worker makes the work refusal under the Occupational Health & Safety Act virtually any criticism of the employee by management amounts to a reprisal. This cannot be the case. In the matter before me, the grievor, from the outset, took the position with his supervisor that the supervisor was incompetent. There is insufficient evidence to determine whether or not the grievor yelled or gesticulated wildly while making his work refusal. However, it is clear that he challenged the supervisor’s authority in an insubordinate way. His refusal was not simply that the work was unsafe, and he had a right to refuse. It is more likely than not, that he was indeed pushing the boundaries with a new supervisor. He continually took the position that the supervisor was incompetent. In his testimony, he disingenuously took the position that he believed that the phrase “incompetent” was contained in OHSA”, which it is not. The grievor had previously served as an Health and Safety Representative. His testimony sought, unsuccessfully, to mitigate his inappropriate behavior.

16The grievor's evidence is that he told the supervisor that his instructions were incompetent and contrary to corrections 101. After the grievor received the first letter, he filed an occurrence report, part of which reads as follows, "I also logged in my log book and verbally stated to Mr. Merriam that I believe his instruction was not a competent one and I also stated that this instruction may be unlawful. Mr. Merriam acknowledged my refusal of unsafe work and incompetent management." Clearly, the grievor's response went beyond the simple and acceptable refusal to do work which he believed to be unsafe and wandered into an insubordinate denigration of the supervisor’s right to manage the work place. There is nothing to indicate that the supervisor did anything other than properly respond to the grievor's work refusal by promptly notifying the Ministry of Labour and receiving a ruling relating to the work refusal.

17Further, there is nothing in the letters to the grievor that I find to be particularly untoward or a breach of the collective agreement. The grievor had engaged in behavior that resulted in formal allegations against him. It would appear that the employer, upon reflection, withdrew the allegations, engaged in further discussions with the grievor, and, at worst, counseled him as to the approach to be taken in the future. Neither the employer nor the employees are to be held to a standard of perfection. The final letter received by the grievor is conciliatory. Regrettably, the grievor seems not to have been able to put this behind him. The employer might have done things differently. But in the result, the grievor was neither disciplined nor dealt with contrary to the collective agreement.

18Accordingly, the grievance is denied.