GSB#2012-2612

UNION#2012-0248-0073

Additional Files noted in Appendix “A”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Aitken et al)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Craig Flood and Katherine Ferreira Koskie Minsky LLP Counsels

FOR THE EMPLOYER

Peter Dailleboust and Felix Lau Treasury Board Secretariat Legal Services Branch Counsels

HEARING

February 13 & 28; March 18, 21 & 24; April 2 & 3; October 27; November 27; December 8, 11 & 16, 2014; January 21 & 29; February 5; June 1, 16 & 22, 2015; February 9, 25 & 26; May 12; June 15, 2016

Decision

1I have grievances before me that relate to a health and safety work refusal and work stoppage that occurred at the Hamilton-Wentworth Detention Centre (“HWDC”) starting on August 14, 2012, and ending on September 11, 2012. I will refer to the general circumstances of this work refusal as “the HWDC events”. The HWDC events were triggered by the discovery of a missing metal electrical cover plate in the unit 4B hallway on August 13, 2012. The discovery of the missing metal plate caused the Correctional Officers (“COs”) to become concerned about their health and safety. The basis for their concern was a belief that the metal plate could be weaponized by turning it into one or more shanks and that the metal plate or the shanks could migrate throughout the institution. The refusal of all COs to perform all of their duties was based initially on their disagreement with the level of search management planned in response to the missing metal plate. From August 15, 2012, until September 11, 2012, when asked by management to attend to their posts, the COs indicated essentially that they would go to their posts if they were permitted to wear their protective vests. At about 3:00 p.m., on August 15, 2012, a Ministry of Labour (“MOL”) Inspector determined that section 43(3) of the Occupational Health and Safety Act (“OHSA”) did not apply to the circumstances of the HWDC events and he ordered the workers back to work. As a result of the work refusal, COs were not paid for the time they did not work starting later in the day on August 15, 2012. These COs filed individual “no work, no pay” grievances. All but six COs participating in the work refusal were issued a one-day disciplinary suspension for not working and for not complying with management’s direction to attend their posts. Six COs received a two-day suspension for allegedly engaging in inappropriate conduct as well as for not working and for failing to comply with management’s direction to attend their posts. The suspensions issued by the Employer for the work refusal were only for the purpose of a CO’s disciplinary record, thereby resulting in no loss of pay. Some COs filed individual grievances challenging their suspensions and the Union also filed a grievance against the suspensions. There is also a group grievance dated April 15, 2013, that challenged the discipline issued to COs for participating in the work refusal.

2The HWDC events prompted the Employer to file an illegal strike application at the Ontario Labour Relations Board (“the OLRB”). The Union and the COs named as respondents in the application claimed that the COs were participating in a lawful health and safety work refusal. The dispute before the OLRB was resolved by the execution of a Memorandum of Agreement and Return to Work Agreement dated September 11, 2012 (“the 2012 Memorandum”). The 2012 Memorandum reads as follows:

Whereas the Employer (Hamilton-Wentworth Detention Centre) filed an Illegal Strike Application and it has been numbered as Board File No. 1734-12-U related to the health and safety work refusal and work stoppage that occurred at the Hamilton-Wentworth Detention Centre during the period from August 14, 2012 to the date of this agreement (“the HWDC Events”).

And whereas the parties agree to the full and final resolution of claims, demands, appeals, proceedings in any way associated with the events, issues, and underlying facts in any way related to the HWDC events and a full final resolution of the Application on the following terms and conditions;

And whereas the parties agree that this Agreement is without precedent and does not constitute an admission of liability by either side or by any of the employees represented by the Union;

The Parties agree to the following terms:

1. Commencing at 0700 hours on September 12, 2012, a level 4 search will occur in accordance with the Ministry Weapons Search Protocol for the entire institution.

2. It is understood that once the entire institution is searched, full inmate movement will resume. It is understood that the search teams will complete the searches without delay.

3. Managers will continue to operate the living units until the search team and unit officers arrive at which time the unit will be turned over to the Correctional Officers who will assume their regular duties. Managers will secure the inmates prior to being relieved. Once the search of each floor is completed, the inmates will be released to the dayrooms and the unit officers will remain on their posts.

4. Management will assign the Correctional Officers and the Operational Manager to each search team. Management will make the best efforts to call in extra staff. Management will bring up to three HWDC ICIT Teams [if available] to do a Level 4 search otherwise first responding institution ICIT Team, and the CET Team from Vanier will be utilized for the Female Unit.

5. There will be no disruption to meal delivery and collections, court movement, and medication issue/delivery. No inmate movement outside of the dayrooms will be permitted for inmate workers, inmates going to Admit & Discharge and inmates who require medical or for emergency reasons.

6. It is agreed to suspend the local overtime protocol (HPRP) as it relates to the order of overtime offers until September 18, 2012 at 20:00 hours or until such time as the searches are completed. However, any overtime hours worked during this period will be counted. OPSEU agrees that they will not file or support any overtime grievances that may occur as a result of this agreement.

7. As per the Provincial Occupational Health and Safety Committee minutes dated June 13, 2012, the Weapons Search Protocol will be reviewed by the Provincial Committee. The Parties will hold the next Provincial meeting at HWDC, and will have as an agenda item a review of how the Weapons Search Protocol was applied during the period August 14^th to the dates of this agreement. The Parties will also have a minimum of one member of each side of the HWDC Local H&S Committee to attend the Provincial Meeting.

8. The Employer can impose discipline up to a cap of a 2 day suspension for all correctional officers (list of effected employees to be generated by the parties) for all hours not worked associated with the HWDC events and/or for their refusal to follow orders between August 14 to the date of the Agreement. For greater clarity, terminations will not be imposed by the Employer. The parties agree that the Union may file a grievance challenging such discipline imposed by the Employer and that a Vice-Chair of the Grievance Settlement Board will duly hear the dispute in accordance with the Collective Agreement between the parties, if such a grievance is filed.

9. The Employer can take action with respect to “no work, no pay” (payroll

deletions) for all correctional officers (list of effected employees to be generated by the parties) for all hours where they did not attend their posts or did not perform their full duties between August 14 to the date of the Agreement and in relation to the HWDC events. A Vice-Chair of the Grievance Settlement Board shall have exclusive jurisdiction to determine subsequently whether any Employer action associated with the issue of “no work, no pay” should be modified or altered. For Clarity, the “no work, no pay” issue is about whether: (i) the Employer is/was required to pay the salary of employees who did not perform their duties during the HWDC events; and, (ii) the Employer’s recovery of any corresponding overpayment was appropriate. Any award imposed by the Vice-Chair on the issue of “no work, no pay”, shall be binding upon the parties. Pending a Vice-Chair of the GSB’s decision on the issue of “no work, no pay”, with respect to the employees who did not perform their duties during the HWDC events, the Employer shall be: (i) entitled to refuse to pay these employees; and/or (ii) make payroll deletions made to these employees. For clarity, the Employer will start processing payroll deletions, the first will be reflected on September 13, 2012 pay, for employees who did not perform their duties during the HWDC events. For subsequent pay periods after September 13, 2012, the Employer agrees that a maximum of 24 hours of pay per pay period will be deducted from regular (classified) employee’s pay as a result of the HWDC events until completion of the repayment. Nothing herein precludes grievances being filed by or on behalf of unclassified employees regarding their claims for pay or any other rights or entitlements under the Collective Agreement during the HWDC events.

10. The parties agree that the Employer shall issue to all Correctional employees a Direction regarding protective vests, dated September 12, 2012 from Assistant Deputy Minister Steve Small attached as Appendix “A”.

11. The Parties agree that the Application in Board File No. 1734-12-U is withdrawn, and not to be refilled.

12. This entire Agreement is enforceable under section 96(7) of the Labour Relations Act.

13. The Parties agree that apart from the specific terms of this agreement and the specific processes set out herein, that they will not pursue, file or support any proceeding, appeal, and/or grievance under any statute, in any forum associated with the HWDC events. Without limiting the generality of the foregoing, the Union, responding Parties and affected employees shall not file, pursue or support any claim, demand, action or proceeding under the Occupational Health & Safety Act, the Labour Relations Act, the Crown Employees Collective Bargaining Act, and the Employment Standards Act, including an appeal of a Ministry of Labour Order, a reprisal application or an unlawful lockout application pursuant to section 101 of the Labour Relations Act.

Signed this 11^th day of September 2012 at the OLRB.

3The parties agreed in paragraphs 8 and 9 that a Vice-Chair of the Grievance Settlement Board (“GSB”) would hear and determine the issues of discipline and “no work, no pay”. Paragraph 13 places restrictions on the Union and COs from pursuing certain claims. The Employer takes the position that I do not have the jurisdiction to deal with certain matters raised by the Union in this proceeding, including the issues of reprisal and lockout. I will address the jurisdictional issues in due course. As provided for in paragraph 8, the Union filed a grievance dated March 23, 2013, challenging the discipline imposed by the Employer and referred it to the GSB on March 25, 2013. In a decision dated July 16, 2013, I addressed a timeliness issue relating to the Union grievance that had been raised by the Employer.

4It took some time to devise a process for hearing the grievances and then many days over 3 years to complete the hearing of this case. But for the co-operation of counsel and the parties, the hearing of these grievances would likely have taken a lot longer. Given the discipline issues, the Employer agreed to call its evidence first. In an effort to expedite what was likely to be a lengthy hearing, the parties agreed that the evidence-in-chief of each witness would come in by a written will-say statement and that the witness would then be subject to cross-examination. The Employer called the following six witnesses: Deputy Superintendent of Operations (“DS”) Tom Bradley, Staff Services Manager (“SSM”) Mike Barton, Superintendent Cathy Morris, Acting DS of Programs Andrea Green, Ms. Denise Scrivano, Superintendent of the Elgin-Middlesex Detention Centre (“EMDC”), and, DS of Administration Bruce Laughlin. The referenced titles of these witnesses were the ones that they had at the time of the HWDC events. At the relevant time, SSM Barton was the Employer Co-Chair on the Joint Health and Safety Committee (“the JHSC”). The Union called the following seven COs as witnesses: Michelle MacLean, Todd Tatryn, Mark Gearing, Mike Pope, Phil Pollard, John Dickson, and Stephen Smith. At the time of the HWDC events, CO Smith was the President of OPSEU, Local 248, and CO MacLean was a Union steward and an alternate on the JHSC. The Union also entered into evidence the will-say statements of COs Beth Collins and Jason Hoye, but they were not called to testify. At the relevant time CO Hoye was the Worker Co-Chair on the JHSC. In determining the facts, I carefully reviewed the oral and documentary evidence. I also considered the extensive final submissions made by counsel. I resolved the conflicts in the evidence by using the usual tests to determine what was most probable having regard to the totality of the evidence.

5As noted above, the Union entered into evidence the will-say of CO Hoye,

but he was not called to testify for medical reasons. Employer counsel advised at the time that he would take the position during final argument that CO Hoye’s will-say should not be given any weight. Counsel did make submissions on this issue during final argument. In support of its position, Employer counsel relied on OPSEU (Marshal et al) v. Ministry of Community Safety and Correctional Services 2013 CanLII 31971 (ON GSB) and OPSEU (Iyamu) v. Ministry of Children and Youth Services 2015 CanLII 67991 (ON GSB). Having considered the submissions of counsel on this issue and the principles referenced in these decisions, I am not prepared to give any weight to the hearsay evidence represented by CO Hoye’s will-say statement. It would not be appropriate in the circumstances to rely on this will-say for the truth of its contents in the absence of CO Hoye testifying under oath and being subject to cross-examination. In particular, I cannot accept as true the assertion by CO Hoye in paragraph 61 of his will-say that Operational Manager (“OM”) R. Long engaged in a series of threats and threats of reprisal against him and CO Collins. I note that many of the relevant aspects of CO Hoye’s will-say can also be found in the will-say statements or testimony of other witnesses.

6In order to provide context for some of the significant aspects of the HWDC events, I will describe at the outset some of the physical and other features of the HWDC and I will also deal generally with the following subjects: contraband, the Weapons Search Protocol (“WSP”), the refusal to work provision in the OHSA and some similar incidents at the institution that preceded the HWDC events.

7The HWDC is a maximum-security institution for adult offenders with a capacity of 494 male and 52 female inmates. It employs approximately 193 classified COs and about 17 fixed-term unclassified COs. It also employs about 59 classified and 17 unclassified employees in food service, maintenance, housekeeping, health and administrative positions. The institution has six stories or levels, five of which house inmates. The first and second levels each have one unit (1B and 2B). Unit 1B houses female inmates and can generally have as many as 50 inmates. The morning kitchen worker inmates are housed in unit 2B right. The third, fourth and fifth levels each have three units (identified as 3A, 3B and 3C, etc.). Each unit has an inmate common area, an inmate living unit and a hallway which runs between the inmate common area and a staff pod area. A ramp runs from the first to the fifth level for the purpose of moving inmates throughout the facility as needed. The more challenging inmates appear to be housed on the fourth level. Worker inmates engaged in laundry and housekeeping duties are located in unit 5C. These worker inmates collect garbage and laundry from all of the units within the HWDC and they are supervised by COs when they perform these duties.

8The existence of contraband in a correctional facility, including at the HWDC, is an ever present concern. Simply put, contraband is unauthorized property in the possession of an inmate. The Ministry has policies and procedures to address the issue of contraband with the primary method for dealing with it being the searching of inmates and areas of the institution. Without referring to all of the searches and security measures at the HWDC that are designed to minimize the risk of inmates possessing, concealing and transporting contraband, I note that COs generally conduct routine searches of the entire institution every two weeks, with the search including inmates, inmate living units and inmate common areas. Authorized random searches of a unit or part of a unit are performed when necessary under the supervision of an OM. Inmates are required to pass through metal detectors in the Admission & Discharge area when they enter or leave the institution. Inmates are frisk searched each time they enter or leave a living unit and when they are in transit between various activity areas. At the direction of management, strip searches can be conducted when a living unit is being searched and at other times when deemed necessary. Specialized equipment such as probes, flashlights, mirrors, handheld metal detectors and search gloves can be utilized during a search.

9The most serious forms of contraband are weapons or items that can be made into a weapon. Weapons are defined as: “commercially manufactured or locally made items that are designed to cause an injury by stabbing, slashing, striking, ballistic or other means. They also include ammunition and explosives.” The words “locally made items” refer to contraband that has been made into a homemade knife, shank and/or shiv which have the potential for use that includes stabbing and slashing. The Ministry has a policy which governs the response to the presence of a weapon or the possible presence of a weapon in an institution.

10The Searching for Weapons policy establishes a process for assessing threat levels and a protocol to follow when searching for weapons at an institution. This policy is also referred to as the WSP. Under the WSP the Superintendent or designate will assume the role of Crisis Manager. The Crisis Manager will establish and consult with a threat assessment team composed of Union and Employer representatives. The threat assessment team must include a worker representative from the JHSC or a designee in the absence of a worker representative. The threat level assessment is completed by considering a variety of criteria listed in the Weapons Search Protocol Checklist (“WSP Checklist”). The process is designed to determine the level of risk to institutional safety and security and to develop recommendations regarding the appropriate level of intervention and/or response to the threat. The Crisis Manager makes the decision as to the appropriate response, including the level and area of search. The WSP identifies five possible search levels with Level 1 the lowest and Level 5 the highest. The five search levels are described in the WSP as follows:

Level 1 - Routine search of a targeted inmate(s) or contained area(s) or the

institution by in-house correctional staff conducted in accordance with the procedures for the regular institutional search program.

Level 2 - Search of a targeted inmate(s) or contained area or the institution with

inmate removal by in-house correctional staff wearing body armour and using hand-held metal detectors and handcuffs/flexcuffs.

Level 3 - Search of a contained area(s) or the institution by in-house correctional

staff using the equipment identified for Level 2 above and with an

ICIT/CET activated but on stand-by as a precautionary measure.

Level 4 - Search of a contained area(s) or the institution with cell extractions by

ICIT/CET, and searches by designated in-house search teams.

Level 5 - Search of the institution with cell extractions by multiple ICIT/CET teams, and searches by in-house and external search teams.

11The WSP references the use of certain equipment, including body armour, starting at a Level 2 search. Body armour refers to a protective vest consisting of a front ballistic panel and a back stab panel. COs at the HWDC are provided with fitted vests that are stored in a secure area of the institution when not in use. At the time of the HWDC events there was not a separate policy apart from the WSP that governed the wearing of vests. The evidence indicates that the practice at the HWDC with respect to searching for weapons mirrors the terms of the WSP. In particular, the level of search and the area to be searched is ultimately determined by management and the wearing of vests is limited to COs who are engaged in a Level 2 search or a higher level of search, and to COs who are working in the area(s) being searched. In other words, the practice on vests at the HWDC was that COs did not wear a vest when performing a Level 1 search or when they were engaged in their usual duties as COs outside of the area(s) of search.

12The presence of homemade weapons is a relatively common occurrence at the HWDC. As CO Smith indicated in his will-say, inmates are ingenious at both fabricating and concealing weapons. Therefore, a search in response to a report of a potential weapon is not always successful. Inmates can hide weapons on their body in ways that are not easily detectable and it is possible for inmates to transport contraband, including a weapon to various areas of the institution. The most common approach when searching for a weapon at the HWDC is to limit the search to the area of the institution, such as a part of a unit or the entire unit, where it is most likely that the weapon might be located.

13The right to refuse work by a worker where his or her health and safety is endangered is contained in Part V, section 43 of the OHSA. Certain categories of persons, including persons employed in the operation of a correctional facility, have a limited right to refuse work. The essential features of section 43 of the OHSA are as follows:

Non-application to certain workers

43. (1) this section does not apply to a worker described in subsection (2)

(a) when the circumstances described in clause (3) (a), (b), (b.1) or (c) is inherent in the worker’s work or is a normal condition of the worker’s employment; or

(b) when the worker’s refusal to work would directly endanger the life, health or safety of another person.

(2) the worker referred to in subsection (1) is,

(a) a person employed in, or a member of, a police force to which the Police Services Act applies;

(b) a firefighter as defined in subsection 1 (1) of the Fire Protection and Prevention Act, 1997;

(c) a person employed in the operation of,

(i) a correctional institution or facility,

Refusal to work

(3) A worker may refuse to work or do particular work where he or she has reason to believe that,

(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself; or

(b.1) workplace violence is likely to endanger himself or herself; or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.

Report of refusal to work

(4) Upon refusing to work or due particular work, the worker shall promptly report the circumstances of the refusal to the worker’s employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by

a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay.

Worker to remain in safe place and available for investigation

(5) Until the investigation is completed, the worker shall remain,

(a) in a safe place that is as near as reasonably possible to his or her work station; and

(b) available to the employer or supervisor for the purposes of the investigation.

Refusal to work following investigation

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that,

(a) the equipment, machine, device or thing that was the cause of the refusal to work or do particular work continues to be likely to endanger himself, herself or another worker;

(b) the physical condition of the workplace or the part thereof in which he or she works continues to be likely to endanger himself or herself;

(b.1) workplace violence continues to be likely to endanger himself or herself;

or

(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention continues to be likely to endanger himself, herself or another worker,

the worker may refuse to work or do the particular work and the employer or the

worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

Investigation by inspector

(7) An inspector shall investigate the refusal to work in consultation with the employer or a person representing an employer, the worker, and if there is such, the person mentioned in clause (4) (a), (b), or (c).

Decision of inspector

(8) The inspector shall, following the investigation referred to in subsection

(7), decide whether a circumstance described in clause (6) (a), (b), (b.1) or (c) is likely to endanger the worker or another person.

Idem

(9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4) (a), (b), or (c).

Worker to remain in safe place and available for investigation

(10) Pending the investigation and decision of the inspector, the worker shall remain, during the worker’s normal working hours, in a safe place that is as near as reasonably possible to his or her work station and available to the inspector for the purposes of the investigation.

Entitlement to be paid

(13) A person shall be deemed to be at work and the person’s employer shall pay him or her at the regular or premium rate, as may be proper,

(a) for the time spent by the person carrying out the duties under subsections (4) and (7) of a person mentioned in clause (4) (a), (b), or (c); and

(b) for time spent by the person carrying out the duties under subsection (11)

of a person described in subsection (12).

14The Sidbec Dosco Inc. decision, supra, and some of the other decisions to which I was referred, provide a detailed analysis of the formal steps contained in section 43 of the OHSA. For reasons that will become obvious, I find it unnecessary to review the formal process that must be followed in a typical work refusal, the consequences of failing to adhere to the process and the decisions that address these issues. In my view, the initial question for determination in this matter is whether the COs were entitled to refuse work given the circumstances of the HWDC events. As set out in section 43(1) (a) of the OHSA, this question necessitates a focus on whether the circumstances that gave rise to the refusal were “inherent in the worker’s work” or was “a normal condition of the worker’s employment”.

15The missing electrical plate that triggered the HWDC events was not the only metal plate that went missing at the HWDC in 2012. The missing plates were secured by regular screws rather than security screws. The local OHSC had recommended that regular screws be replaced with security screws for all of the electrical plates within the secure area of the HWDC. This task had not been completed by August of 2012. From the Union’s perspective, the events relating to the other missing plates are relevant for assessing the nature of the HWDC events.

16CO Taylor discovered and reported on May 23, 2012, that an electrical cover plate was missing in the small interview room in unit 4B. CO Taylor also indicated that he had a health and safety concern as a result of the missing plate. It appears that the metal plate was missing as of at least the previous day. A threat level assessment was completed by OM Gluchowski and CO MacLean. The WSP Checklist discloses that it was agreed that unit 4B would be locked down and that a Level 1 search, enhanced with metal detectors, would be conducted. The staff agreed initially that vests were not required and no one requested that all of level 4 be searched. In the early afternoon and before the search of unit 4B had been completed, another CO indicated that there should be a Level 2 search of unit 4B and initiated a work refusal. The MOL was contacted and an Inspector arrived at the facility just after 4:00 p.m. Discussions with the Inspector and staff resulted in a No Orders Issued report. The Inspector suggested that the stage 1 discussions continue and they did. The CO who initiated the work refusal decided to return to work and the enhanced Level 1 search was completed the following morning. No contraband was found during the search. On returning to the unit after the work refusal had been initiated on May 23, 2017, OM Gluchowski noticed that three COs were wearing vests. When he determined that no one had authorized them to wear vests, he asked each of them to prepare an occurrence report to explain why they wore their vests without authorization. As noted previously, the WSP does not provide for the wearing of vests during a Level 1 search.

17On August 1, 2012, a metal plate covering an electrical receptacle was discovered missing from the ramp between levels 2 and 3. As noted previously, this ramp is the main route used by staff and inmates to travel throughout the institution. OM Higgins and CO Hoye participated in the threat level assessment. The WSP Checklist confirms that the metal plate could be used as a weapon, that it posed the possibility of serious injury/death and that potential motives of the threat were injuries to staff, self and other inmates. There was agreement that inmates would be locked down and that a Level 2 search of the entire institution would be implemented (except for unit 1B/Seg.) involving the use of vests, metal detectors and the handcuffing of inmates through the hatch. The completion of the search did not result in the discovery of the missing metal plate. A search of the institution that was conducted in this instance has the effect of disrupting the normal operation of the institution for at least the two days that it would take to complete the search.

18On August 4, 2012, CO Tatryn was assigned to unit 4B. He was approached at about 5:45 p.m. by an inmate while he was at the grille of unit 4B left and handed an envelope. The inmate told him to read it right away, but to keep it to himself because he did not want others to think he was a rat. In the presence of the in-charge officer, CO Tatryn opened and read the enclosed letter. The letter read as follows:

This is a note for whoever.

No names. The piece missing

From the ramp was on this

Range 4BL in the bathroom, it

Was not found in the search.

Friday. We don’t want to get

Stabbed cells 4 and 9 have made

8 shanks out of it. We have

Seen them. Please don’t search

Immediately. We don’t want to

Look like rats but it is here.

Don’t search 4 and 9 right away

So it looks like a real search.

This is not a joke.

19Shortly after 6:00 p.m., unit 4B was locked down as a result of the information CO Tatryn had received from the inmate. I do not have any evidence as to whether a search was conducted, the level of search and what area was searched. Given the evidence I did hear about searches under the WSP, it is likely that the information provided by the inmate resulted in a Level 2 search of unit 4B. Any search that was conducted did not result in the discovery of a metal plate or shanks fashioned from a metal plate.

20It was in this context that the HWDC events took place. A few months prior to the observation in mid-August 2012, that a metal plate was missing from the unit 4B hallway, two other metal plates had gone missing and an inmate had advised that 8 shanks had been made from one of them. The previous missing metal plates or any shanks made from a metal plate had not been discovered after searches had been conducted. In describing the detailed evidence about the HWDC events, I have attempted to be as concise as possible. I will focus primarily on the events concerning the “no work, no pay” issue, and to a lesser extent on the events that are relevant to the disciplinary issues.

21At about 10:45 a.m., on August 13, 2012, CO Leroux reported the discovery of the missing metal plate from the unit 4B hallway to acting OM Yule. The inmates in unit 4B were locked down for lunch at 11:00 a.m. Likely because of his inexperience in the position, OM Yule did not complete a threat level assessment and the WSP Checklist. However, an enhanced Level 1 search of unit 4B was carried out. The search commenced at 2:15 p.m. with the use of metal detectors. Inmates were stripped search and frisked and the staff searched with their vests on. It was only because the inmates were not handcuffed through the hatches before being removed from their cells that this search did not meet all the criteria of a Level 2 search. Any CO observing the search would likely have concluded that a Level 2 search was being conducted given that the COs conducting the search were wearing vests. It was close to 7:00 p.m. when the search was completed and unit 4B was returned to the normal routine. A metal plate or pieces of it were not found during the search. There were no health and safety concerns expressed on August 13, 2012, by any CO about the level of search, the area searched and the safety precautions that were employed during the search.

22OM Gluchowski conducted the morning muster on August 14, 2012, at about 7:00 a.m. He advised the COs present about the previous day’s search of unit 4B. Several COs indicated that they had health and safety concerns due the possible migration of the missing metal plate and its potential use as a weapon. OM Gluchowski responded to these concerns by indicating that the inmates would remain locked down until upper management was advised of their concerns at the morning meeting. COs reported to their posts, but did not unlock inmates at the usual time.

23At about 8:30 a.m., OM Duykers, the OM assigned to the fifth floor, had ordered staff to unlock the inmates on his floor. It appears that he was particularly interested in ensuring that the worker inmates in unit 5C commenced their duties. The staff on the fifth floor, and CO Collins in particular, expressed a concern about unlocking the inmates without there being a proper search for the missing metal plate. With the assistance of CO Hoye, CO Collins advised OM Duykers that it was unsafe to unlock the laundry and housekeeping worker inmates from unit 5C because they could participate in the migration of the missing metal plate. OM Duykers reported the work refusal and the basis for it to upper management. At about 9:00 a.m., DS Bradley informed SSM Barton of the events of the previous day relating to the missing metal plate. DS Bradley asked him to complete a threat level assessment and to investigate a work refusal by CO Collins at unit 5C.

24SSM Barton attended at unit 5C to investigate the work refusals. COs

Collins and Hoye informed him of their health and safety concerns arising from the missing metal plate. An interim resolution was reached that would allow for the movement of the worker and other inmates. It was agreed that the pathway (ramp, laundry unit, main corridor, etc.) the worker inmates would take would be searched. It was also agreed, among other measures, that inmates leaving unit 5C would be stripped searched and that metal detectors would be used to scan the inmates and their clothing for contraband. CO Collins resumed her duties utilizing the agreed to security precautions. After leaving unit 5C, SSM Barton and CO Hoye went to the In Charge Manager’s office to do a threat level assessment and to complete the WSP Checklist. CO Hoye brought with him the WSP Checklist from August 1, 2012, that he and OM Higgins had completed when a missing plate was discovered on August 1. CO Hoye advocated strongly that a Level 2 search of the entire building should be conducted given that the circumstances were similar to those that had occurred on August 1 which had resulted in such a search. SSM Barton discussed this request with senior management. He then advised CO Hoye that management was only willing to perform a Level 1 search on the remainder of the fourth floor, namely for units 4A and 4C. With the failure to agree on the threat level assessment, the work refusal continued. SSM Barton contacted the MOL and Inspector Parco arrived at the HWDC at about 12:30 p.m.

25Attending the meeting with the Inspector Parco in the multi-purpose room were COs Hoye and Collins, SSM Barton, OM Long and ADS Green. The main focus of the discussion was on the type of search that should be conducted in the circumstances. CO Hoye maintained that a Level 2 search of the institution should be conducted and the Employer took the position that such a search was not warranted. By about 3:00 p.m., Inspector Parco had completed the FVR and discussed it with the parties at a further meeting. The FVR referenced the search for the missing metal plate that had been performed at unit 4B on the previous day and that COs were refusing to work on August 14, 2012, because the metal plate may have migrated to another area of the institution. CO Hoye had the opportunity to identify aspects of the FVR with which he disagreed and he also added some comments. The key paragraphs of the FVR are as follows:

The management has followed their protocol [and] has demonstrated due diligence in dealing with this situation. At this point there has been no evidence that there is a weapon, and it could not be demonstrated that there was an immediate hazard to any officer.

It is recommended that as the facility continues to do their routine searches of the facility extra caution and preventative measures be taken to ensure the safety of the officers. (ie: the use of wand metal detectors etc.)

It is the opinion of this inspector that the continuation of the officers to conduct their work is not likely to endanger their Health & Safety.

26The FVR did not result in ending the work refusal. CO Hoye discussed the FVR with other COs. There developed some uncertainty about the recommended level of search having regard to the paragraph in the FVR that referenced “preventative measures” and the use of “wand metal detectors”. Some COs interpreted the reference to metal detectors as requiring a Level 2 search since metal detectors and similar protective equipment are not used during a Level 1 search. CO Hoye raised this uncertainty with SSM Barton with the result that the MOL was contacted to clarify the FVR. The COs did not comply with the Employer’s order at 6:00 p.m. to unlock the inmates due to their ongoing health and safety concerns and the uncertainty over the FVR. The HWDC remained on lockdown for the remainder of August 14, 2012.

27The further contact with the MOL led to a teleconference with Mr. H. Vogt, MOL Manager, starting at about 6:00 p.m. Participating in the call were SSM Barton, ADS Green, COs Smith, J. McCormick and Hoye. CO Hoye had to leave shortly after the start of the teleconference due to child care issues. The teleconference did not take long to complete. The issue of the ambiguity of the one paragraph in the FVR was raised. Manager Vogt stated that the ruling in the FVR is “not likely to endanger” and asked whether the workers had a new reason for refusing work. CO Smith said they did not. Manager Vogt indicated a few times that the workers did not have the right to refuse work. CO Smith felt that the MOL was not interested in hearing his concerns and he indicated that he was done talking to Manager Vogt. The teleconference ended with Manager Vogt essentially stating that there was no right to refuse work since there was no new reason for the refusal. At 7:40 p.m. Manager Vogt sent a fax to the HWDC containing the following determination:

Since no new reasons for refusing to work were raised, the inspector’s previous decision stands. The inspector will attend at the facility on the morning of August 15 to address any additional concerns and to clarify aspects of the report.

28COs Smith and McCormick had two further meetings with upper management during the evening of August 14. Superintendent Morris, DS Bradley and SSM Barton were in attendance at the last meeting. CO Smith requested a Level 2 search of units 4A, 4B and 4C, with the possibility of expanding the search if the metal plate was not found. The matter was left with the Employer offering a Level 2 search of units 4A and 4C and an indication that the inmates would not be unlocked until the MOL addressed the situation on the following day.

29In describing the events that occurred on August 15, 2012, I relied to a considerable degree on the will-say of CO MacLean and to a lesser extent on the will-say of CO Smith. In the context of all of the evidence, I found that their evidence best captured the relevant events of that day.

30At about 6:50 a.m., DS Bradley addressed the COs at muster. He told them about the search of unit 4B for the missing metal plate and the MOL determination in the FVR of the previous day. He indicated that there would be a Level 2 search that morning of units 4A and 4C and that only the COs assigned to the search team and to units 4A and 4C would be permitted to wear vests. He stated that the inmates in unit 4B were to be unlocked and released to the 4B dayroom. He also indicated that the COs in units 4A and 4C were expected to remove their vests at the completion of the search and that the inmates in those units were to be unlocked so as to return the institution to normal operations. Some COs then expressed health and safety concerns. They referred to the migration of the metal plate and the fact that they might have to respond to a code on the fourth floor without a vest. The COs requested a Level 2 search and that they be allowed to wear their vests. DS Bradley responded that all staff members who were not assigned to units 4A and 4C or the search team were not allowed to wear their vests. He also advised that the MOL would be returning that morning to clarify the order in the FVR that was issued on the previous day.

31CO MacLean and CO G. Vanderdeen discussed the situation with the COs scheduled to work the T7 shift. These COs advised them that they were refusing to work without their vests and that they would stay in the staff lounge. CO MacLean reported this development to management. DS Bradley denied a request from CO MacLean that the COs be permitted to wear their vests until the MOL clarified the FVR. He reiterated the Employer’s position communicated at muster. CO MacLean spoke again to the COs in the staff lounge. They confirmed that they were invoking their right to refuse unsafe work and she again informed DS Bradley that the COs would report to their posts if they could wear their vests. CO MacLean participated in a further meeting with upper management at about 9:20 a.m. The positions of the parties were canvassed again and remained unchanged. At about 10:00 a.m. CO MacLean, with other COs, addressed COs scheduled to work the T7, T8 and T9 shifts in the courtyard. The COs were given an update on the health and safety issues and they again indicted that they were not prepared to report to their posts. DS Bradley was again so advised.

32At about 10:25 a.m. managers from other institutions began arriving at the HWDC to attend at the posts the COs were refusing to occupy. MOL Inspectors Parco and C. Boccinfuso attended at the HWDC at about 10:30 a.m. Meeting with the Inspectors in the multi-purpose room were DS Bradley, SSM Barton, ADS Green, COs MacLean and Hoye. The Inspectors were given updates by the parties. The MOL agreed to clarify the FVR and accepted CO Hoye’s view that the FVR should be amended rather than a new one created. After the meeting adjourned, Inspector Parco deleted the ambiguous paragraph that referred to “the use of wand metal detectors etc.” and replaced it with a new paragraph in the FVR that read as follows:

The employer has established procedures that determine the level of risk and the nature of precautions to be taken in various circumstances. The workplace parties have identified that additional areas of the fourth floor will be searched and have determined the level of precautions to be taken.

33The meeting with the MOL resumed and the amended FVR was signed by SSM Barton and CO Hoye at about 12:10 p.m. COs MacLean and Smith, and other COs, addressed the staff in the courtyard at about 12:40 p.m. The COs were advised of the amended FVR. After a thorough discussion, the COs elected to continue with the work refusal because they believed that their concerns were not being addressed. When CO MacLean advised SSM Barton of this, he advised her to contact the MOL. After advising CO Smith that she would be calling the MOL, CO MacLean contacted the MOL at about 13:12 p.m. She advised J. Gratton of the missing metal plate, the employer’s refusal to conduct a Level 2 search of the entire institution, management’s refusal to permit COs to wear vests and the Employer’s failure to allow the internal responsibility system to work on behalf of the COs on duty. CO MacLean asserts in her will-say that, to the best of her knowledge, the MOL never issued a report addressing the issue of vests.

34Another discussion of the work refusal took place in the multi-purpose room shortly after 1:00 p.m., with the MOL Inspectors present. COs MacLean and Smith, and other COs were present, along with DS Bradley and SSM Barton. Management again stated its position on the issues as follows. The Employer would conduct a Level 2 search of units 4A and 4C and only the staff in those units and members of the search team would be permitted to wear vests. Once the search was completed, COs would be expected to remove their vests and release the inmates to the dayrooms. All areas of the institution would return to normal operation and staff would not be permitted to wear their vests. CO Smith tried to convince the Inspectors that a Level 2 search covering more areas of the institution was appropriate in the circumstances. The Inspectors kept repeating that the COs did not have the right to refuse work under the OHSA. The Inspectors requested the opportunity to address the COs.

35The Inspectors addressed the staff for at least 40 minutes in the courtyard. The MOL advised the staff that the Employer had a protocol in place and the COs did not have the right to engage in a work refusal under section 43 of the OHSA. The COs asked the Inspectors various questions including why management would not allow them to wear their vests. According to CO Smith, the Inspectors kept repeating that the COs had no right to refuse work. Given the negative reaction of the COs, CO Smith advised the Inspectors that it was best that they left. In his will-say, CO Smith refers to a discussion that he had with the Inspectors after leaving the courtyard that went as follows. He asked them if they were going to make a determination on the vest issue. Inspector Boccinfuso replied that that issue was not before him now and that he was only there to deal with the level of search. Inspector Parco did not respond at all. When CO Smith stated that the concern of the COs now was about the vest issue, Inspector Boccinfuso just kept repeating that the COs did not have the right to refuse.

36At a meeting at about 2:30 p.m., the MOL again addressed the parties in the multi-purpose room. The Inspector indicated that management had not violated its procedures and that the WSP gave management the power to determine the level of search and the areas to be searched. The Inspector indicated that the requirements for a work refusal under section 43 of the OHSA had not been met. Inspector Parco presented the final FVR to the parties at about 2:50 p.m. The last two paragraphs of this FVR read as follows:

The employer has stated that they will be doing a level 2 search of the adjacent areas (4A and 4C) in accordance with their procedure for Searching for Weapons.

The inspector has determined that section 43(3) does not apply to this situation. The reasons for refusing work do not meet the criteria laid out in the section of the Act. The workers are ordered back to work.

At CO MacLean’s request, the phrase “The workplace parties are encouraged to use the IRS to deal with issues” was added in handwriting to the last paragraph of the FVR. The worker side did not sign the FVR.

37The final order from the MOL contained in the FVR was read to the COs assembled in the courtyard. After considerable discussion about the issues, the COs voted that they would not report to their posts without their vests. CO MacLean advised SSM Barton of this result. At about 3:40 p.m. Superintendent Morris advised COs Smith, MacLean and other COs that the COs would be removed from payroll for the duration of the work refusal. She also advised that disciplinary action may be taken for participation in the work refusal and that management would begin meeting with each CO in the presence of the Union. The worker representatives then met with the COs in the courtyard to advise them of the positions taken by Superintendent Morris. The COs decided that they would not report to their posts unless they could wear their vests and a Level 2 search of the institution was conducted. CO MacLean reported the decision of the COs and the reasons for it to management.

38Starting at 5:00 p.m. management began to meet with COs. A manager read from a script that had been prepared by a lawyer. The script read as follows:

As per MOL’s decision [provide a copy of the decision], your work refusal does not fall under the scope of Section 43 (3) of the Occupational Health and Safety Act (OSHA). Therefore, you are directed to return to your post and resume all your duties. Your supervisor is issuing you a direct order to return to your position and resume all duties. Will you follow this direction?

If the answer is “no”:

Please be advised that your failure to comply with the direction to report to your post and perform your duties will result in your being sent home and removed from payroll for the time during which you are refusing to work. Please note that this direction is not a disciplinary action, but rather, an application of the general “no work, no pay” principle. At this time will you return to your post?

If the answer continues to be “no”:

Since you are refusing to return to your post, you are hereby directed to leave the

institution. Since you have decided to refuse the performance of your duties, you

will not be paid for the time during which you did not perform your duties.

Please be advised that if you are willing to comply with the direction to resume your full duties, you are directed to return to the institution for the remainder of your shift and at that time you will be placed back on payroll. It is your employer’s expectation that you report for duty and resume all of your position’s responsibilities on your next scheduled shift.

Please be advised that your failure to follow the direction to attend at your post

and perform your duties may be subject to an allegation hearing, which may result in discipline.

39As noted previously, the Employer began implementing the principle of “no work, no pay”, at about 5:00 p.m. on August 15, 2012, when managers began reciting the script to COs. For the duration of the HWDC events, COs attended at the institution in uniform (with a few exceptions). At the commencement of each shift a manager would follow the script and advise the CO or the COs as a group about the MOL decision and direct the CO or COs to go to their post and resume all of their duties. The invariable response from a CO to this direction was that the CO would comply if he or she was permitted to wear their vest. Management did not give permission to the COs to attend at their posts with vests. Each time a CO refused to attend his or her post, the manager would reference the “no work, no pay” principle and advise the CO that a failure to comply with the direction could result in discipline.

40On August 16, 2012, CO MacLean was wearing her vest as she attended at DS Bradley’s office at around 7:18 a.m. DS Bradley asked her to remove her vest and she complied. At about 10:00 a.m., CO MacLean met with some Union stewards to touch base and it was confirmed that the position of the COs, with the support of the Union, continued to be that they wanted a Level 2 search and that they would return to their posts if they were permitted to wear vests. At about 7:10 a.m., on August 22, 2012, as DS Bradley was going through the script, COs Hoye and Smith raised the issues of vests and the level of search to which DS Bradley responded as follows: “this is not about vests; it is about the MOL order and your refusal to comply with it and our instructions to return to work.” DS Bradley indicated in his testimony that his response was meant to convey that the parties were dealing with a labour relations dispute, and not an issue about vests. While DS Bradley addressed staff with the information contained in the script at about 8:10 a.m. in the staff lounge on August 26, 2012, a discussion took place which included the subject of vests. A CO asked where it states that a CO could not wear a vest. DS Bradley stated, in essence, that the WSP set out the circumstances for the wearing of vests. He indicated that vests are to be worn under three conditions, namely community escorts, a Level 2 or higher search and ICIT activations for ICIT members. Staff was reminded that management had advised on August 15, 2012, that COs assigned to units 4A and 4C and members of the search team were permitted to wear their vests since a Level 2 search had been authorized for those areas. He indicated that COs who were not in the area of a Level 2 search were told not to don their vests which was consistent with the practice of the institution. He finally reminded the COs present that the same protocol has been in place for some time without issue.

41The work refusal that started on August 15, 2012, turned into a stalemate that lasted for many weeks. Management, relying on the MOL order, directed COs to return to their posts and explained the consequences of their failure to do so. The COs refused to attend to their posts because they believed that their health and safety concerns were not being addressed. Managers filled in for the COs who did not report to their posts. As Superintendent Morris described in her will-say, the work refusal had a significant impact on the operation of the HWDC. The Union, led by CO Smith, made efforts during the work refusal to minimize as much as possible the disruption to the normal operation of the institution and to keep the COs calm. It was during the course of the work refusal that six COs allegedly engaged in some misconduct which led the Employer to give them an additional day of suspension. As the work refusal continued, the parties attempted to negotiate a resolution, but their efforts were unsuccessful until they were before the OLRB and agreed on the 2012 Memorandum.

42In addition to agreeing to a process for addressing the “no work, no pay” and the discipline issues, the parties also reached agreement on two other important matters that are reflected in the 2012 Memorandum, namely the level of search and the wearing of vests. They agreed that a Level 4 search would be conducted for the entire institution before the operation of the living units would be turned over to the COs from the managers. Conducting a high level search of the facility is consistent with what occurs after managers have been operating an institution for a period of time. COs appear to take the view that an institution that is inadequately staffed with managers will likely result in health and safety concerns that can be remedied only by a high level search of the entire institution. Such a search provides COs with some assurance that they will be returning to an institution that is as safe as possible. The parties also agreed that COs could wear their protective vests during the course of their normal duties and when performing Level 1 searches. This altered the practice that had been in effect for many years under the WSP. The direction on vests from ADM Small referred to in paragraph 10 of the 2012 Memorandum reads in part as follows:

APPENDIX A

Until employer and employee representatives from both the Provincial Joint Occupational Health and Safety Committee and the Ministry Employee Relations Committee meet to discuss possible amendments to the wearing of body armour (personal protective vests), the Weapons Search Protocol, and related policies and procedures, the following interim measures will apply:

1. Correctional employees who have been issued ministry approved body armour and have properly fitted armour are permitted to wear body armour during the course of their regular duties and are responsible to maintain, store, and secure the body armour in accordance with existing policies and procedures. As stated in the Maintenance and Storage of Body Armour policy, “all body armour when not in use ….must be stored at the institution in the area(s) designated by the Superintendent”;

2. Although employees may choose to wear their body armour during routine or Level One searches, this option does not alter or amend the current procedures for completing routine or Level One searches;

43The mystery of the missing metal plates was not solved with the Level 4 search of the entire institution that took place after the work refusal ended. Some contraband was discovered during that search, but the missing metal plate(s) or pieces of them were not found. There were however discoveries of homemade metal weapons not long after the Level 4 search had been completed. A handmade metal shank was found in unit 4C left on September 19, 2012. This discovery led to a Level 2 search of unit 4C left. As part of her duties to log and check incoming mail on October 1, 2012, CO MacLean discovered a “sharpened metal object about 4 inches long” in an envelope addressed to “NEW WHITE SHIRT, Female With Tattoos”. This led to a Level 2 search of unit 4A and the surrendering of a similar piece of metal by an inmate. It appears that the homemade metal weapons discovered on September 19 and October 1, 2012, were not made from the missing metal plates. On September 27, 2012, a weapon made from a razor blade with a cardboard handle tightly wound with string was found by a CO in unit 3B. This discovery led to Level 2 search of unit 3B. Some of the pieces from a missing metal plate were not located until June of 2013. On about June 24, 2013, two shanks were discovered in a mop closet in unit 4B. CO MacLean and OM P. James created a template document of a missing metal plate and placed pieces of metal that had been located on the template to determine whether parts of the missing metal plates were still circulating in the HWDC. The template revealed that not all pieces of the missing metal plates had been located.

44I will refer to the issues in dispute without setting out a detailed description of the extensive submissions made by counsel over four hearing days. The parties differed about whether there was one or two work refusals, namely whether there was a work refusal based on the level of search and a different one based on the refusal of the Employer to permit every CO to wear a vest. The parties also disagreed about whether the MOL decision ordering the workers back to work addressed the vest issue or whether it just dealt with the level of search. If the MOL order did not cover the subject of vests, there is a dispute about whether the vest issue should be before me in this proceeding since the Employer argued that the alleged failure of the MOL to deal with that subject could have been appealed. Apart from these issues, there is the overriding dispute about whether the right to refuse work applied to the COs in light of the nature of the HWDC events. There is a dispute about whether the failure to permit COs to wear a vest is contrary to Article 9 of the Collective Agreement and section 25(2)(h) of the OHSA and whether these alleged violations are relevant in assessing the lawfulness of the work refusal. The parties disagree over whether the Employer engaged in a lockout of the COs and whether the Employer decisions to rely on the “no work, no pay” principle and to discipline COs for their conduct during the HWDC events constitute a reprisal for the COs exercising their right to refuse unsafe work. As noted previously, there is also a dispute as to whether I have the jurisdiction to deal with the lockout and reprisal issues. Finally there is the issue of whether the Employer had just cause to discipline the COs for their conduct during the HWDC events. The Employer took the position that the discipline issues are moot and that I should exercise my discretion not to deal with them. The Union disagreed with this position and requested that I deal with the question of whether the Employer had just cause to discipline the COs in the circumstances.

45In addition to OPSEU (Marshal et al), supra, and OPSEU (Iyamu), supra, referred to in paragraph 5 of this decision, Employer counsel relied on the following decisions: Ontario Public Service Employees Union (Metcalf/Mercer) and Ministry of the Solicitor General & Correctional Services, GSB Nos. 926/96 and 927/96 (Dissanayake); Canadian Gypsum Construction, [1978] OLRB Rep. Oct. 897; Auto Jobbers Warehouse Ltd., [1981] OLRB Rep. December 1715; Hamilton-Wentworth Detention Centre, [2012] OLRB Rep. November/December 1071; Hamilton-Wentworth Detention Centre, [2014] O.O.H.S.A.D. No. 6 (OLRB); OPSEU v. Ministry of Correctional Services (Brookside Youth Centre) 2002 CanLII 31871 (ON LRB); Hamilton-Wentworth Detention Centre, [2009] O.O.H.S.A.D. No. 99 (OLRB); Kyle Dagenais v. Glencore Canada Corporation Kidd Operations 2014 CanLII 18533 (ON LRB); Corrosion Service Ltd., [2014] OLRB Rep. March/April 216; Sudbury Mine, Mill & Smelter Workers’ Union, Local 598 (C.A.W.), Office of Adjudication, Randall, Decision No. OHS 96-46; and, Re Baffin Inc. and CUOE, 2002 CarswellOnt 9131 (Ellis).

46In addition to Sidbec Dosco Inc., supra, cited in paragraph 15 of this decision, Union counsel relied on the following decisions during his submissions: Re London (City) and Ontario (Ministry of Labour), 1986 CarswellOnt 5615 (Currie); Re C.A.W., Local 707 and Ford Motor Co. of Canada, 1977 CarswellOnt 3355 (Shouldice); Toronto Transit Commission, [1998] O.O.H.S.A.D. No. 186 (OLRB); Kitchener Professional Fire Fighters Association, IAFF L457 2007 CanLII 29084 (ON LRB); OPSEU (Anger et al) 2008 CanLII 70515 (ON GSB); Fab-Air Metal Industries 2005 CanLII 1713 (ON LRB); Orenda Aerospace Corporation 2004 CanLII 22055 (ON LRB); Re United Steelworkers and International Nickel Co. of Canada (1972), 1972 CanLII 1993 (ON LA), 24 L.A.C. 51 (Weiler); Canadian Corps of Commissionaires (Hamilton), [1995] OLRB Rep. May 601; Re North Central Plywoods (Division of Northwood Pulp and Paper Ltd.) and Pulp, Paper and Woodworkers of Canada, Local 25 (1982), 8 L.A.C. (3) 406 (Bird); Re Western Forest Products Inc. and USWA, Local 1-1937 (2015), 249 L.A.C. (4^th) 402 (Coleman); Butler Metal Products, [1987] OLRB Rep. 1003; Graphite Speciality Products Ltd. 2008 CanLII 51233 (ON LRB); 1377041 Ontario Inc. (o.a Hotspot Auto Parts) 2012 CanLII 72730 (On LRB); Canada (Correctional Service) v. Glen Brown and Kevin Kunkel, 2013 OHSTC 20; Baffin Inc. and CUOE, 2002 CarswellOnt 9131 (Ellis); Re Toronto (City) and CUPE, Local 79 (Charles) (2014), 241 L.A.C. (4^th) 56 Herman); C.E. Lummus Canada Ltd., [1983] OLRB Rep. Oct. 1688; Humpty Dumpty Foods Limited, [1977] OLRB Rep. July 401; Plaza Fiberglass Manufacturing Limited, [1990] OLRB Rep. Feb. 192; Hilton Villa Care Centre Ltd. and HEU, 2012 CarswellBC 3564 (BCLRB); Re Steel Equipment Co. and USWA, Local 3257 (1964), 1964 CanLII 984 (ON LA), 14 L.A.C. 356 (Reville); and, OLBEU (Xanthopoulos) and Liquor Control Board of Ontario (1990), GSB No. 1321/89 (Fisher).

47I will deal first with Employer counsel’s submission that I do not have the jurisdiction to address some of the matters raised by the Union in this case. Employer counsel submitted that there was only one work stoppage and that the wording in the 2012 Memorandum gives me jurisdiction to address one work refusal, but not a second work refusal over vests. More significantly, Employer counsel also submitted that paragraphs 8 and 9 of the 2012 Memorandum identify precisely the issues that are before me and that paragraph 13 sets out the issues that are not before me. He submitted that the terms of paragraph 13 preclude the Union from pursuing the reprisal and lock-out issues.

48Paragraphs 8 and 9 provide me with the authority to deal with two issues that arose from the work refusal, namely the issues of “no work, no pay” and discipline. The questions for me to decide are essentially whether it was proper for the Employer not to pay the COs who did not work or who refused a direction to work and whether the Employer had just cause to discipline the COs for not working and for any other misconduct. The wording in paragraphs 8 and 9 give me a broad authority to deal with these two questions. What the parties intended by paragraph 13 is less clear. For convenience, I will set out this paragraph again.

13. The Parties agree that apart from the specific terms of this agreement and the specific processes set out herein, that they will not pursue, file or support any proceeding, appeal, and/or grievance under any statute, in any forum associated with the HWDC events. Without limiting the generality of the foregoing, the Union, responding Parties and affected employees shall not file, pursue or support any claim, demand, action or proceeding under the Occupational Health & Safety Act, the Labour Relations Act, the Crown Employees Collective Bargaining Act, and the Employment Standards Act, including an appeal of a Ministry of Labour Order, a reprisal application or an unlawful lockout application pursuant to section 101 of the Labour Relations Act.

The questions that arise from the Employer’s position are whether the Union is precluded from raising the reprisal and lock-out issues in this proceeding when dealing with the specific issues of “no work, no pay” and discipline, or whether paragraph 13 merely precludes the Union from pursuing a reprisal application or an unlawful lockout application in another forum so as to avoid a multiplicity of proceedings. After giving this issue much thought, I am not satisfied that paragraph 13 along with the other language in the 2012 Memorandum precludes the Union from raising the reprisal and lock-out issues in this proceeding. Given the importance of health and safety and the issues identified in paragraphs 8 and 9, I would have expected that any intention to limit my jurisdiction so as to preclude me from addressing these issues would have been expressed in clearer terms. Therefore, in dealing with the matters referred to me by paragraphs 8 and 9 of the 2012 Memorandum, I will also deal with the reprisal and lock-out issues raised by the Union.

49As I noted previously, the central question for me to determine in order to resolve the “no work no pay” and discipline issues is whether section 43 of the OHSA applied to the COs in the circumstances of the HWDC events. Another way to phrase the central question is to ask whether the COs were engaged in legally protected activity when they refused work. Whether the MOL Inspector was correct when he ultimately determined that the COs were not entitled to refuse work is of no relevance to me when deciding this central question. Whether the Inspector’s order covered the vest issue, whether there were one or two work refusals and whether it is significant that there was no stage 1 meeting on the vest issue are all questions that are essentially irrelevant if the section 43 right to refuse work did not apply to the COs in the circumstances. Before turning to what I characterize as the central question, I will make some observations on some of these matters given the time spent on these issues by the parties.

50I understand the Union’s position to be that the COs initially refused to work because of the level of search, but that from August 15, 2012, their refusal was motivated only or at least primarily by the vest issue. The evidence suggests otherwise. Although I have no doubt that the wearing of vests was an important health and safety issue for the COs, I am satisfied that the refusal of the Employer to permit the COs to wear vests was not the only reason and likely not the primary reason for the duration of the work refusal. When the worker representatives canvassed the COs after the Inspector’s order and told them later in the day on August 15, 2012, that management would soon start to meet with them individually to tell them about “no work, no pay” and possible discipline, the COs took the position that they would not go to their posts unless they could wear their vests and a Level 2 search of the institution was conducted. During the morning of August 16, 2012, Union stewards confirmed to CO MacLean that the COs were refusing to work because all of them were not permitted to wear their vests, but also because they wanted a Level 2 search. The COs that were assigned to units 4A and 4B did not attend to their posts at all even though they would be permitted to wear their vests until the Level 2 search of these units was completed. This suggests that for these COs at least that the level of search was an important reason for refusing work. When COs Hoye and Smith asked questions of DS Bradley on August 22, 2012, they asked not only about vests, but also about the level of search. And finally, once managers took over the operation of the HWDC starting on August 15, 2012, the reality is that the COs would not likely discontinue their work refusal until the Employer agreed to a high level of search of the entire institution. It is these considerations that lead me to observe that the issue of vests at best was only one of the reasons for the work refusal and that it is very unlikely that a resolution of that issue alone would have resulted in the COs returning to work.

51The Union witnesses and, through effective cross-examination by Union counsel, virtually each Employer witness expressed the view that the Inspector’s order did not address the wearing of vests. Nonetheless, Employer counsel’s submission that the Inspector considered the vest issue in making his order is entirely plausible. The Inspector was present at the HWDC for a considerable amount of time investigating the work refusal. The initial task of the Inspectors in this instance was not to decide whether the COs were endangered in the circumstances, but rather to decide whether the COs had the right to refuse work. While at the institution on August 15, 2012, prior to issuing his order, Inspector Parco heard management state its positions on the level of search, the scope of the search and the wearing of vests. In essence, management indicated that vests would only be worn as provided for in the WSP. The subject of vests was raised by COs during a meeting with the Inspectors in the courtyard. Hearing the concerns of COs on the vest issue did not alter the Inspectors comments to the COs to the effect that management was following its procedures and that the COs did not have the right to refuse work. Prior to issuing his final order then, Inspector Parco had heard that the matters influencing the COs in their decision to refuse work were the level of search and the refusal of the Employer to permit all COs to wear vests. In the FVR, Inspector Parco wrote that “The reasons for refusing work did not meet the criteria…” of the OHSA which suggests that he took into account more than one reason offered by the COs for refusing work. In my view, unless there is a clear indication to the contrary, it is logical to expect that an Inspector would consider all of the reasons advanced by the COs and the Union for engaging in a work refusal before issuing his or her determination on whether the COs have a right to refuse work in the circumstances. Inspector Boccinfuso’s response late in the day on August 15, 2012, to CO Smith’s inquiry about vests does not amount to clear indication to the contrary, particularly since it was Inspector Parco that wrote the order. I simply observe therefore, that it is quite possible that the Inspector’s order covered the issue of vests even if the parties did not think it did and even if the issue had not been addressed in the internal responsibility system or at a stage 1 meeting.

52I will make one final observation. The Union takes the position that it could not appeal the Inspector’s order because the order did not deal with the wearing of vests. Even assuming that the order did not address the vest issue, the Union and the workers were still confronted with an order directing the workers to return to work. Rather than simply ignoring the order, it appears to me that the COs had two options. The COs could comply with the order or the Union could appeal the order on the basis that it was not responsive to the situation because the level of search was no longer an issue and that the Inspector did not address the real reason for the work refusal, namely the failure on the part of the Employer to permit all of the COs to wear vests. The Employer’s position that the Union could have appealed the refusal of the Inspector to make an order that addressed the vest issue may have some merit. As Employer counsel pointed out, section 61(5) of the OHSA provides that an order includes “the refusal to make an order or decision by the inspector”. CO MacLean contacted the MOL during the afternoon of August 15, 2012, because in essence she wanted the MOL to address the vest issue. The MOLs failure to respond to her request could be interpreted as a refusal to make a decision. The interchange between CO Smith and Inspector Boccinfuso and the Inspector’s comments about vests could also be interpreted as a refusal to make an order or decision on the wearing of vests. I do not agree with the Employer’s position that the Union’s failure to appeal the Inspector’s order or his refusal to make an order on the wearing of vests precludes the Union from raising the vest issue in this proceeding. However, I simply observe that the Union’s failure to appeal the Inspector’s order may be some indication that the Union appreciated that the work refusal was based more on the level of search and less on the failure of the Employer to permit all COs to wear vests.

53I turn now to address the central question in this case and that is whether section 43 of the OHSA applied to the COs in the circumstances of the HWDC events. As noted earlier, the initial parts of section 43 provide that the right to refuse work does not apply to certain categories of workers and these categories include COs, police officers and firefighters. These workers do not have the right to refuse work when the circumstances described in clauses (3) (a), (b), (b.1) or (c) are inherent in the worker’s employment or are normal conditions of that employment or when the worker’s refusal to work would likely endanger the life, health or safety of another person. There are a number of decisions that have considered the application of section 43 to COs. I will refer to two of them.

54In Maplehurst Detention Centre [1994] O.O.H.S.A.D. No. 21, Adjudicator Blair had before him a work refusal under section 43 by a CO who asserted that it was unsafe for him to be locked in the yard with potentially violent inmates. An Inspector had concluded that the CO did not have the right to refuse this work. The issue before the Adjudicator was whether the contact with inmates in the yard was inherent in or a normal condition of the CO’s work. He commented on the “inherent” factor as follows:

12. The focus of the argument by the parties was on whether the circumstance which troubled Mr. Chroust was inherent in his work. The position of the Employer and the Ministry of Labour was that the kind of face to face contact with inmates which occurred in the yard at the material time was inherent in the work of a correctional officer.

13. The Union, for its part, resists an interpretation of the word “inherent” which would permit a finding that any circumstance which involves a failure to take appropriate and reasonable precautions is inherent. This argument is attractive. To take an easy example, if Mr. Chroust refused to perform yard duty because an important piece of safety equipment was malfunctioning (for example, if the emergency alarm buttons were not working) it is hard to see how that is inherent in his work.

14. By contrast, (and this is my example, not the Union’s) it is not hard to see how the circumstances of a building being on fire is inherent in the work of a firefighter. Applying the analysis of the Union to the firefighting analogy, can it be said that a firefighter could not refuse if an important piece of safety equipment was malfunctioning? Malfunctioning equipment may not be inherent in the work of a firefighter, although fire is. Of course, in this example one would also have to consider whether the refusal would directly endanger another person (paragraph 43(1)(b)). There are difficult issues here, and I do not wish to suggest that by using firefighters as an example I am purporting to decide any of those issues. For reasons which will become apparent, I do not need to do so in this case.

55Adjudicator Blair then went on to deal with the “normal condition of employment test”. He commented on that test and additional matters as follows:

16. I find that at the time of the refusal, the circumstance which gave rise to it was a normal condition of Mr. Chroust’s employment. It is clear from the use of the word “or” in paragraph 43(1)(a) that the “normal condition of employment” test is distinct from the “inherent” test. In my view, the Legislature has made it clear that a person in the position of Mr. Chroust may not use the work refusal procedure to call into question the existing and established practices of the institution. This conclusion sounds more onerous for workers than it in fact is. Had Mr. Chroust been refusing to work because of (for example) a malfunctioning alarm button or radio, that would not have been a normal condition of his employment any more than it would have been inherent. Clearly, it is neither, and the right to refuse would have existed unless paragraph 43(1)(b) applied. Also it means that Mr. Chroust and other correctional officers cannot refuse to perform work that is a part of their established routine, unless some circumstance exits which departs from that established norm. It does not mean that an existing practice cannot be called into question as being unsafe. Indeed, as will be seen, I have found that the circumstances which prevailed in the yard at the time of the work refusal were unsafe and in violation of the Act.

17. …The only way that I can make any sense at all of the language is to read “normal condition of …employment” as referring to the established and prevailing working conditions. On that test, and on the facts before me, I am compelled to conclude that the conditions to which Mr. Chroust objected (quite rightly, in my view) were at the time a normal condition of his employment.

18. As a matter of procedure I find that the section 43 mechanism was not available to Mr. Chroust.

19. The Inspector, then, perhaps for reasons different than mine, quite properly

concluded that his task was not to decide under section 43(8) whether the circumstances which led to the work refusal were “likely to endanger” Mr. Chroust or another worker.

20. In my view, however, when an inspector concludes that a refusing worker is not entitled to refuse under section 43 because its application has been removed by subsection 43(1), that conclusion should only serve to focus his or her inquiry – it does not end it. At that point what began as a work refusal investigation becomes an investigation of a complaint pursuant to the inspector’s general powers. And in circumstances where for reasons of public policy the right of a worker to refuse has been restricted, there are compelling reasons for inspectors to expedite the investigation of the worker’s concern, and to make appropriate orders where violations are found.

56The other decision that I will refer to also involves a work refusal by COs at the HWDC. This decision of OLRB Alternate Chair (“AC”) B. McLean was released some months after the HWDC events had ended. The events giving rise to the section 61 application under the OHSA occurred over the weekend of March 23-25, 2007. The hearing of the application took almost five years to complete.

57The triggering event in Hamilton-Wentworth Detention Centre, supra, was an outside telephone call to OM Gluchowski at about 6:00 p.m. on Friday, March 23, 2007, in which the caller indicated that there was a zip gun (a homemade prison weapon) in the institution. Management determined that a Level 2 search would be conducted, but CO Smith and the other COs wanted a Level 4 search. Once CO Smith had indicated that he had a health and safety concern, an OM contacted the MOL regarding the refusal to do a Level 2 search. The work refusal began at about 8:30 p.m. when COs began refusing to do clock rounds and searches. On his second telephone call to the HWDC around 9:20 p.m., Inspector Kariam advised management that the COs did not have the right to refuse work in the circumstances and that the Union could file a complaint instead of refusing work. Inspector Kariam also spoke to CO Smith and gave him the same message. After the call with Inspector Kariam, the work refusal expanded. The COs on the following dayshift refused to work after CO Smith explained what had occurred the previous evening. Management began staffing the institution with managers. Inspector Kariam attended the institution during the late morning on Saturday and he provided the parties with a FVR that read as follows:

THIS SITUATION BEGAN WHEN THE INSTITUTION WAS NOTIFIED BY AN ANONYMOUS EXTERNAL PARTY THAT A WEAPON WAS IN THE WORKPLACE.

CORRECTIONAL OFFICERS ARE REFUSING TO CONDUCT AN INSTITUTIONAL SEARCH [CLOCK ROUNDS] IN THE DORMS BECAUSE THEY DISAGREE WITH THE DECISION MADE BY THE EMPLOYER REGARDING THE THREAT ASSESSMENT LEVEL.

CORRECTIONAL OFFICERS WANT A LEVEL FOUR USUED WHILE THE EMPLOYER HAS IMPLIMENTED A LEVEL TWO.

DECISION:

THIS REASON TO REFUSE DOES NOT FALL UNDER THE SCOPE OF

SECTION 43(3) OF THE OCCUPATIONAL HEALTH AND SAFETY ACT.

CONDUCTING A SEARCH [ROUNDS], WITH THE POSSIBILITY THAT A

WEAPON MAY BE FOUND IN THE WORKPLACE, IS A CONDITION INHERENT IN THE WORK OF A CORRECTIONAL OFFICER.

THERE IS A PROCEDURE IN PLACE OUTLINING MEASURE TO PROTECT THESE WORKERS. IF THERE IS A DISPUTE IN TERMS OF THE APPLICATION AND INTERPRETATION OF THESE PROCEDURES THEN THE JOINT HEALTH AND SAFETY COMMITTEE MUST BE INVOLVED.

IF THIS ISSUE REMAINS OUTSTANDING THEN A COMPLAINT MAY BE FILED WITH THE MINISTRY OF LABOUR.

INFORMATION PROVIDED: “THREAT LEVEL ASSESSMENT AND WEAPONS SEARCH PROTOCOL” DATED OCTOBER 2005.

CO Smith read a statement prepared by the Inspector to the COs advising them that they did not have the right to refuse work. The COs continued their work refusal until about 6:00 p.m. on Sunday, March 25, 2007, when the parties entered into a return to work agreement. That agreement provided for a search of the institution and for the COs to return to work. The Employer retained the right to discipline, but not the right to discharge a CO.

58In response to the Union’s assertion that the Employer and Inspector Kariam did not properly comply with the steps in section 43, the Employer took the position that section 43 did not apply to the COs because the circumstances complained of were “inherent in the worker’s work and a normal condition of the workers’ employment”. The Board indicated that the main issue before it was whether section 43 of the OHSA applied to COs in the circumstances. It reviewed some decisions that dealt with this issue, including Maplehurst Detention Centre, supra. The Board then made the following comments regarding the applicability of section 43 to COs:

66. The result of the exemptions contained in sections 43(1) and (2) for those workers described therein is a stark one. Those employees described in section 43(2) are subject to a limited right to refuse work even if the work is dangerous, and even if the employer is violating the Act and its regulations. There is no doubt that the health and safety of workers in these jobs is given less protection than workers in other jobs. The reason for this is that the workers in these jobs have dangerous jobs and/or the protection of other people (members of the public, other workers etc.) is dependent on these jobs being done despite the risks. The reason for the Legislature’s choice in this regard is quite obvious. It does not make sense that a police officer or a firefighter could engage in a work refusal where the dangerous situation is an inherent part of the job. Moreover, it does not make sense that such a worker could engage in a work refusal even where the situation is not an inherent part of the job if the effect is to endanger the life, health and safety of someone else. Finally, it hardly seems possible that firefighters or other enumerated workers found within a dangerous situation could refuse work while the parties waited for a Ministry of Labour Inspector to conduct a section 43 investigation in order to declare if the risk is relevant in the firefighters’ duty. It appears much more likely employees in those special categories of employees are more or less on their own in deciding whether to refuse to work. They may refuse, but if the dangerous circumstances were inherent in their work then they may suffer employment consequences. On the other hand, if they were right, then they will not. I do not mince words: the Legislature would rather a worker in this special category of professions have different health and safety rights than have a member of the public or someone under their care be hurt.

67. The reason I state this fact so starkly is that, with respect, it is fact glossed somewhat over in many of the cases that have reviewed these issues. These exemptions are important for the maintenance of the public’s health and safety and for the health and safety of inmates housed in correctional facilities. I note that none of the cases discuss the reasons for these exemptions in any detail. In my view it is appropriate to do so because the reason for the limitations on these classes of employees is plain and important to interpreting section 43. These employees, firefighters, police officers and correctional officers, are charged with the protection of others and their jobs are inherently dangerous. If they refuse work, they are putting lives at risk.

68. COs (and other workers set out in section 43(2)(c) and (d)) do not appear at first blush to have the same responsibility as police officers and firefighters and other classes of employees with a limited refusal right. However, their duties are significant both to the inmates and the general public. Inmates depend on COs for all of their needs, such as their medications, meals and other life necessities. They also depend on the COs to provide protection for them from other inmates

and so that they do not harm themselves.

69. As a result, it seems unlikely the Legislature contemplated circumstances except in the rarest of cases, where all COs would refuse to perform work. A work refusal, particularly a general work refusal, for these classes of employees, must almost be by necessity a rare thing. That despite the fact that the work environment in which correctional officers work, is a dangerous one, as was aptly described …in Re Maplehurst Detention Centre, …at paragraph 3:

It is beyond dispute that at any given time there may be individuals incarcerated there who could reasonably be expected to become violent, and that steps must continually be taken to ensure that the correctional officers and the inmates under the care and control of the institution are not subject to undue risk. That is the nature of maximum security correctional facilities.

59In addressing the Union’s submission that the presence of a gun in the

institution presented risks that were not “inherent” in the work of COs, the Board referenced the comments of Adjudicator Blair when he wrote that “…correctional officers cannot refuse to perform work that is part of their established routine, unless some circumstances exist which departs from that established norm”, and then continued with the analysis of this issue as follows:

74. There is no doubt that the presence of a zip gun in the workplace or even the allegation that there is a zip gun in the workplace is an unusual occurrence. In fact, there was no suggestion that a zip gun had ever been found in any Ontario correctional institution. Nor did any witness suggest that there had even been the specific threat of a zip gun in an Ontario correctional institution.

75. That being said, the possibility of the presence of homemade jail weapons, while not a routine matter by any means, is a regular part of the corrections officer’s workplace. The potential presence of those kinds of weapons is one of the main reasons for the existence of the weapons search policy, the application of which is the main thrust of the dispute behind these applications. It is notable that the potential for ballistic weapons is specifically identified in the policy. It is also notable that some of the union’s witnesses, who are active COs, had viewed images and descriptions of “zip guns” in online research on sites devoted to correctional officers.

76. …what faced the COs was the threat, made by an anonymous outside caller, that was not so dissimilar than the kind of weapons that COs potentially face every day they are at work. I do not wish to diminish the treat in any way, but COs have dangerous jobs and working in circumstances where such a weapon may be present is part and parcel of that job.

77. In my view, therefore, carrying out searches in inmate living areas and cells with the possibility that there might be a homemade weapon, including a homemade “gun”, located there is a normal part of a correctional officer’s job. That is so as long as the searches have the appropriate equipment. As Adjudicator Cadieux stated in Stone and Canada (Correctional Service), [2002] C.L.C.A.O.D. No. 27:

78. The risk of being assaulted with a weapon, any type of weapon, whether or not it has been fabricated from material obtained from one of the shops is part and parcel of the job of a correctional officer. That risk is however mitigated by the numerous controls, security policies and procedures put in place by Correctional Service Canada. The Springhill Institution Searching Plan is an example of such a procedure, and an effective one which, in passing, has been activated and resulted in the lock down of the Institution prior to Mr. Stone’s refusal to work. The ongoing interaction with the offenders, i.e. dynamic security is another example of the type of security measure used by the staff to identify potential threatening situations. Preventive security is another aspect of the overall security system in place in a medium security institution. The overall security system in such penitentiaries necessarily includes a certain amount of static security. Much of the debate in this case centers on whether the absence of staff at port #20 increases, in the end, the risk of assault on correctional officers to the point where the staff is in danger as defined in the Code.

79. As it stands today, the right to refuse provisions in the Code are not meant to address long standing problems such as the problem identified by Mr. Stone in the instant case. The right to refuse in the Code remains an emergency measure to deal with situations where one can reasonably expect the employee to be injured when exposed to the hazard, condition or activity. However, it cannot be a danger that is inherent to the employee’s work or is a normal condition of employment. This statement alone is fraught with consequences for correctional officers. Given that the likelihood of encountering violence is a normal condition of employment of the job of correctional officers, who are specifically trained to deal with these situations, it is very difficult to envisage a situation, in that environment, where a refusal to work for violence could be justified other than in a specific and exceptional circumstance.

80. Finally, to use the words of Adjudicator Blair, the COs “may not use the work refusal procedure to call into question the existing and established practices of the institution”. In my view the application of the weapons search policy and the process through which management decides which level of search to engage in is part of the existing and established practices of the HWDC. There is no evidence, as in Maplehurst, that the institution had a established practice of dealing with a threat of a zip gun in the jail in a particular way. In the absence of that practice and in the circumstances of this case, the management of which search level to apply (even if it was changed) may not be challenged through a work refusal.

81. For the foregoing reasons, …the COs did not have the right to refuse work in the circumstances which existed at the jail on the weekend of March 23, 2007. The circumstances that existed were a normal part of the workers’ employment and was inherent in the workers’ work.

60The Union’s request for reconsideration of the above decision was dismissed by AC McLean for the reasons set out in Hamilton-Wentworth Detention Centre [2014] O.O.H.S.A.D. No. 6.

61I agree and adopt AC McLean’s interpretation of section 43 of the OHSA, his description about the nature of and the reasons for the limited right that COs have to refuse work and how he applied the relevant considerations to the facts before him to ultimately determine that the COs were not entitled to refuse work as a way to respond to the dangers presented by the possible existence of a weapon in the workplace. When applying the relevant considerations to the dangers or hazards that gave rise to the work refusal at the HWDC from August 14 until September 11, 2012, I also come to the conclusion that the COs did not have the right to refuse work.

62The specific danger confronting the COs at the relevant time related to a missing metal plate from the unit 4B hallway. This was the third metal plate that had gone missing in a four month period and searches had failed to locate the two other metal plates. There was no dispute that a piece or pieces of a metal plate could be fashioned into a homemade weapon or weapons (shanks) and that it was possible that these weapons or the metal plate could migrate throughout the HWDC. The evidence in this case and, apparently in Hamilton-Wentworth Detention Centre, supra, as well, is that it is not uncommon for inmates to construct and conceal homemade weapons at the HWDC. AC McLean noted that “the presence of homemade jail weapons…is a regular part of a corrections officer’s workplace” and in a similar vein Adjudicator Cadieux commented that “the risk of being assaulted with a weapon …is part and parcel of the job of a correctional officer.” The workplace of a CO is a dangerous environment. In my view, the danger to COs as of result of the presence of shanks made from a metal plate are inherent in a COs work at the HWDC. It was argued that the information from an inmate on August 4, 2012, that eight shanks had been made from a missing metal plate made the danger in this case specific or more concrete, and not simply inherent. I disagree. If anything, this evidence simply confirms that these types of items are not uncommon at the HWDC and that the danger generated by their presence is inherent in a COs work. As AC McLean also noted, it is because the presence of handmade weapons are inherent to a COs workplace that there is a specific policy that deals with searching for weapons.

63The COs refused to work not only because of the danger created by the missing metal plate, but more directly because of management’s planned response to the threat. Given that unit 4B had been searched, the Employer’s ultimate decision under the WSP to deal with the threat posed by the missing metal plate was to perform a Level 2 search of units 4A and 4C. Only COs working in these units and on the search team would be permitted to wear their vests. The COs wanted a Level 2 search of the entire institution and as of August 15, 2012, every COs wanted to wear a vest. As noted previously, the WSP has been in effect for some time and it governs such matters as the level and scope a search, and when a CO can wear a vest. The policy and practice provide that management ultimately decides the level and scope of any search after a threat level assessment has been conducted. There is no evidence to establish that the usual practice when searching for weapons is to search the entire institution. Indeed, as noted previously, the evidence is that a search is usually limited to the locale where the weapon is most likely to be found. I can understand why CO Hoye was strongly advocating for an institution wide search on August 14, 2012, given that such a search was conducted when a metal plate was discovered missing on August 1, 2012. However, an institution wide search appears to be a rare event and, after considering the relevant criteria, management elected to perform only a Level 2 search of units 4A and 4C. It is also clear from the policy and practice that COs who do not work in the area being searched or who are not on the search team do not wear vests. Prior to the HWDC events, COs working at posts outside of the search area would not wear their vests, even though the migration of a weapon is always a possibility and even though they might have to respond to a code that would bring them into an area being searched. The COs at the HWDC were aware of the practice related to the wearing of vests. This is not a situation where COs working outside of the area of search are being deprived of protective equipment that is normally provided to them because the practice and the WSP dictate that vests are not worn in such circumstances. The general practice and the terms of the WSP relating to the level and scope of a search and the wearing of vests constitute part of the normal conditions of employment for COs at the HWDC. To the extent that the work refusal was related to the Employer’s failure to permit all COs to wear vests, the work refusal was an attempt to alter the established practice on the wearing of vests. As Adjudicator Blair noted, COs “may not use the work refusal procedure to call into question the existing and established practices of the institution”.

64Even if the right to refuse work under section 43 of the OHSA applied to these COs, it is not clear to me how a general work refusal can be justified on the basis that a CO without a vest might have to respond to a code in an area being searched. In my view, a refusal cannot be justified on the basis of an event that might never occur. The chances of a code occurring in an area being searched are quite remote. At best, the justification might be used by a CO at work to refuse to respond to a code in the search area, but cannot be used to refuse to attend work at all in the unlikely event that the CO might have to respond to a code. Even if there was a code to respond to an area being searched, the evidence indicates the danger to a CO responding to such a code without a vest would be minimal given that the inmates would be locked down and there would be extra staff in the area.

65Apart from the remaining issues to be determined, these are the considerations that lead me to conclude that the COs did not have the right to refuse work under section 43 of the OHSA in the circumstances of the HWDC events. These circumstances were either inherent in their work or a normal condition of their employment. The conclusion that the COs were not entitled to refuse work between August 14 and September 11, 2012, goes a long way to resolving the two key issues before me as described in paragraphs 8 and 9 of the 2012 Memorandum.

66The Union took the position that the failure of the Employer to permit the COs to wear vests contravened article 9 of the Collective agreement as well as section 25(2)(h) of the OHSA. These provisions read as follows:

ARTICLE 9 – HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

9.2 The Employer shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees

Duties of employers

25(2) Without limiting the strict duty imposed by section (1), an employer shall,

(h) take every precaution reasonable in the circumstances for the protection of a worker;

67Each of these provisions obliges an employer to take reasonable precautions for the health and safety of its employees. Even if the Employer’s failure to permit all COs to wear vests contravenes these provisions, it does not alter the fact that the COs did not have the right to refuse work. The question of whether a CO can refuse unsafe work must be assessed under section 43 of the OHSA, and not on the basis of the general arbitral principle that an employee need not obey an unreasonable order. As AC McLean noted, COs have a limited right to refuse work “even if the employer is violating the Act and its regulations.” And I would add that this is also the case if the Employer is contravening the Collective Agreement. I agree with the comments of Adjudicator Blair and AC McLean that an Inspector investigating a work refusal should also investigate whether the concerns of the workers might disclose a violation of an employer’s obligations under the OHSA. In this instance, after determining that the COs did not have the right to refuse, the Inspectors did not address whether the Employer’s decision on the level of search and its decision not to permit all COs to wear vests constituted a failure by the Employer to take every precaution reasonable in the circumstances for the protection of the worker. The question as to whether the Employer failed to take every precaution for the protection of the COs when it did not permit all COs to wear vests is an interesting one, but it is not a question for me to answer. That question is now academic given that a CO at the HWDC can now wear a vest during the course of his or her normal duties and when performing Level 1 search. In any event, I agree with AC McLean that some focus by the Inspectors on the broader health and safety concerns of workers may have contributed to a faster and more satisfactory resolution of the issues that led to the work refusal.

68I turn now to deal with the reprisal and lock-out issues. A determination on one or both of these issues that favours the Union would have an impact on the “no work, no pay” and discipline issues. After considering the submissions on these issues, I am satisfied that the Employer’s conduct that negatively impacted the COs did not constitute a reprisal and that the Employer did not lock-out the COs.

69The Union took the position that the decisions to discipline and to not pay COs in the circumstances of the HWDC events amounted to a reprisal by the Employer since these actions constituted penalties imposed on them because they acted in compliance with or sought the enforcement of the OHSA. Section 50 (1) of the OHSA provides as follows:

No discipline, dismissal, etc., by employer

50 (1) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker;

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.

70The onus is on the Employer to prove that it did not breach section 50(1). The question before me on the reprisal issue is whether the Employer has established that its actions against the COs were not undertaken at least in part because the COs were engaged in legally protected activity. In addressing this matter, I have considered Union counsel’s submission that the Employer has not provided the evidence necessary to discharge its onus. In my view, when considering all of the relevant evidence, I am satisfied that the Employer applied the “no work, no pay” principle and disciplined the COs for reasons that had nothing to do with whether the COs acted in compliance with or sought the enforcement of the OHSA. The Employer did not take any action against the COs for refusing work on August 14 and for refusing to work most of the day shifts on August 15, 2012. It was only later in the afternoon on August 15, 2012, once the Inspector determined that the COs did not have the right to refuse and ordered them back to work that the Employer advised the COs of the consequences of their continuing the work refusal. It essentially advised them that they would not be paid and they would be subject to discipline if they did not attend to their posts and resume their normal duties. The only reason the Employer followed through with no pay and discipline for the COs was because the COs did not return to work when instructed to do so and because of its conclusion that their refusal to return to work was without lawful justification. I am also satisfied that the Employer gave the six COs an additional day of suspension because of its view that they had engaged in some misconduct that warranted discipline and not because of an anti-health and safety animus.

71The Labour Relation Act (“LRA”) defines lock-out as follows:

“lock-out” includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees, with a view to compel or induce employees, or to aid another employer to compel or induce that employer’s employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employer’s organization, the trade union, or the employees.

72The Union took the position that the Employer, by not permitting all COs to attend their posts with their vests, was attempting to compel or induce the COs to alter the terms and conditions of their employment. One normally thinks of a lock-out as some action by the Employer that limits the work available to workers for an improper purpose. It is difficult to see how the suspension of work during the HWDC events was an act by the Employer, given that the work stoppage was initiated by the COs and continued when the Employer had directed them to return to work. In any event, as the lock-out jurisprudence indicates, it is the purpose for the act of limiting work that is important. It was not the purpose of the Employer to compel or induce the COs in the manner described in the lock-out definition. Contrary to the Union’s submission, the Employer was not exerting economic pressure on the COs in an attempt to get them agree to an alteration in their terms and conditions of COs when it did not permit all of them to wear vests. As noted previously, the Employer’s position on the wearing of vests was consistent with the COs terms and conditions of employment as reflected in practice and the WSP. The absence of the act of suspending work and the absence of a prohibited motive by the Employer leads to the conclusion that the Employer did not lock-out the COs during the HWDC events.

73And finally I will briefly address the subject of discipline. In October 2012, Superintendent Morris sent the majority COs an allegation letter in which it was alleged that the CO did not work scheduled hours and/or refused to follow orders from a supervisor. The CO was given the opportunity to respond to the allegation in writing. Given the nature of the infraction and the fact that she was limited to a two-day suspension by the terms of the 2012 Memorandum, Superintendent Morris issued a one-day suspension to the majority of COs that participated in the work refusal. Ms. Scrivano handled the disciplinary process for six of the COs. She held separate allegation meetings with each of them and ultimately decided to issue each of them a two-day suspension. The reasons for the suspensions are set out in each letter of suspension.

74As noted previously, the Employer took the position that the discipline issue is moot. The disciplinary letters were intended only for placing the suspensions on the disciplinary records of the COs; no pay was lost due to the suspensions. The last person disciplined for the HWDC events was CO Hoye on February 6, 2013. By the time final argument commenced in this matter, the one and two-day suspensions issued to the COs for the HWDC events had been removed from each of their disciplinary records by operation of the sunset clause.

75In arguing that I should address the individual discipline issues, the Union took the position that the process the Employer used to assess the appropriate discipline was flawed. It was noted in particular that the Employer did not consider the individual circumstances of each CO and that it did not take into account such matters as a discipline free record, seniority and any mitigating circumstances.

76The only remedy available to each CO at this stage would be a declaration. Even if the matter of discipline is not moot, the exercise of determining whether the Employer had just cause to issue the two-day suspension to six COs or the one-day suspension to the remaining COs who participated in the work refusal almost five years ago is not one that would now serve the interests of the grievors, the Union or the Employer. However, in general terms, I note the following. The failure of a CO to report to his or her post in the absence of a lawful excuse can be an offence deserving of some discipline and the discipline could include a suspension. As I found earlier, the COs in this case did not have a lawful excuse to refuse work. The Employer would also be entitled to deal with the misconduct of a CO during the work refusal by imposing discipline. Many of the factors the Union raised are often relied upon to challenge the penalty in a typical discipline case. But this matter is far from a typical discipline case given the unlawful nature of the mass refusal to work by COs. Each CO was informed of the allegation(s) against him or her and was provided with an opportunity to respond to the allegation(s). In the context of a mass work refusal and the agreement of the parties on discipline at paragraph 8 of the 2012 Memorandum, I am not prepared to conclude that the process used by the Employer or the nature of its considerations for determining the appropriate penalty for each CO are matters that could be relied upon to successfully challenge the discipline.

77In summary, I have found that the section 43 right to refuse work in the OHSA did not apply to the COs at the HWDC because the dangerous circumstances that gave rise to the work refusal during the relevant period were inherent in a CO’s work or a normal condition of a CO’s employment. I have also found that the actions of the Employer and its motives do not establish that there was a lock-out or a reprisal by the Employer against the COs for engaging in legally protected activity. Having regard to paragraphs 8 and 9 of the 2012 Memorandum, I find that the Employer was not required to pay the salary of COs who did not perform their duties during the HWDC events and that there was a basis for imposing discipline on COs for refusing to work when there was no lawful basis for their refusal to work.

Dated at Toronto, Ontario this 18^th day of July 2017.

Appendix A

GSB Number

OPSEU File Number

Grievor

2012-2613

2012-0248-0074

Alaimo, Nick

2012-2614

2012-0248-0075

Alaimo, Vince

2012-2615

2012-0248-0076

Alkazely, Saleh

2012-2616

2012-0248-0077

Allen, Donna

2012-2617

2012-0248-0078

Allen, John

2012-2618

2012-0248-0079

Amato, Matthew

2012-2619

2012-0248-0080

Anttila, Kari

2012-2620

2012-0248-0081

Arbic, Mason

2012-2621

2012-0248-0082

Armstong, Curtis

2012-2622

2012-0248-0083

Arruda, Sandra

2012-2623

2012-0248-0084

Ashford, Jerome

2012-2624

2012-0248-0085

Barclay, Allan

2012-2625

2012-0248-0086

Bedford, Michael

2012-2626

2012-0248-0087

Beharrell, Allison

2012-2627

2012-0248-0088

Bond, Patti

2012-2628

2012-0248-0089

Borsatto, Sergio

2012-2629

2012-0248-0090

Boychuk, William

2012-2630

2012-0248-0091

Bradley, Tyler

2012-2631

2012-0248-0092

Brearley, Craig

2012-2633

2012-0248-0094

Buck, Dan

2012-2634

2012-0248-0095

Butler, Chris

2012-2635

2012-0248-0096

Buttenham, Brian

2012-2636

2012-0248-0097

Byrne, Anthony

2012-2637

2012-0248-0098

Caldecott, Anthony

2012-2638

2012-0248-0099

Campbell, Craig

2012-2639

2012-0248-0100

Caswell, Ken

2012-2640

2012-0248-0101

Chamberlain, Robert

2012-2641

2012-0248-0102

Champagne, Nicole

2012-2642

2012-0248-0103

Champagne, Nicole

2012-2643

2012-0248-0104

Collins, Elizabeth

2012-2644

2012-0248-0105

Davis, Alison

2012-2645

2012-0248-0106

Derkach, Michael

2012-2646

2012-0248-0107

Devries, Melissa

2012-2647

2012-0248-0108

Dickson, Cheryl

2012-2648

2012-0248-0109

Dickson, John

2012-2649

2012-0248-0110

Dinardo, Giustino

2012-2650

2012-0248-0111

Dorschner, Aaron

2012-2651

2012-0248-0112

Dowling, Chris

2012-2652

2012-0248-0113

Droughan, Tim

2012-2653

2012-0248-0114

Edwards, Michael

2012-2654

2012-0248-0115

Elderman, Gary

2012-2655

2012-0248-0116

Elliott, Brian

2012-2656

2012-0248-0117

Evans, Eric

2012-2657

2012-0248-0118

Fisher, Michael

2012-2658

2012-0248-0119

Fletcher, Hollie

2012-2659

2012-0248-0120

Foote, Don

2012-2660

2012-0248-0121

Forster, Andrew

2012-2661

2012-0248-0122

Fournier, Craig

2012-2662

2012-0248-0123

French, Christopher

2012-2663

2012-0248-0124

Gardiner, Robert

2012-2664

2012-0248-0125

Gauthier, Trevor

2012-2665

2012-0248-0126

Gearing, Mark

2012-2666

2012-0248-0127

Gernhart, David

2012-2667

2012-0248-0128

Gilbert, Elaine

2012-2668

2012-0248-0129

Giovannangeli, Roberto

2012-2669

2012-0248-0130

Glancie, Todd

2012-2670

2012-0248-0131

Gough, Mary

2012-2671

2012-0248-0132

Graham, Patricia

2012-2672

2012-0248-0133

Gulka, Patrick

2012-2673

2012-0248-0134

Hagen, Gordon

2012-2674

2012-0248-0135

Hawes, Kenneth

2012-2675

2012-0248-0136

Hebert, Joe

2012-2676

2012-0248-0137

Heiliger, David

2012-2677

2012-0248-0138

Herechuk, Larry

2012-2678

2012-0248-0139

Hill, Gary

2012-2679

2012-0248-0140

Hollick, Jennifer

2012-2680

2012-0248-0141

Hoye, Jason

2012-2681

2012-0248-0142

Hughes, Daryl

2012-2682

2012-0248-0143

Iacoviello, Paul

2012-2683

2012-0248-0144

Indelicato, Frank

2012-2684

2012-0248-0145

Irish, Gary

2012-2685

2012-0248-0146

Jackson, Dennis

2012-2686

2012-0248-0147

Jacobson, Steve

2012-2687

2012-0248-0148

Janisse, Brian

2012-2688

2012-0248-0149

Johnston, Donna

2012-2689

2012-0248-0150

Johnstone, Paul

2012-2690

2012-0248-0151

Jones, Amy

2012-2691

2012-0248-0152

Jones, Byan

2012-2692

2012-0248-0153

Kaine, Juanita

2012-2693

2012-0248-0154

Kavanaugh, Barbara Ann

2012-2694

2012-0248-0155

Keast, Crystal

2012-2695

2012-0248-0156

Klodnicki, Joseph

2012-2696

2012-0248-0157

Klodnicki, Ramona

2012-2697

2012-0248-0158

Kovacs, Bill

2012-2698

2012-0248-0159

Labeau, Daniel

2012-2699

2012-0248-0160

Lawson, Wayne

2012-2700

2012-0248-0161

Leblanc, Brian

2012-2701

2012-0248-0162

Lee, Jessica

2012-2702

2012-0248-0163

Lee, Todd

2012-2703

2012-0248-0164

Leroux, Tim

2012-2704

2012-0248-0165

Les, Kristina

2012-2705

2012-0248-0166

MacDonald, Shaun

2012-2706

2012-0248-0167

MacDougall, Andrew

2012-2707

2012-0248-0168

Maclean, Joyce

2012-2708

2012-0248-0169

MacNeil, Laurie

2012-2709

2012-0248-0170

Malcolmson, Gregg

2012-2710

2012-0248-0171

Mann, Dave

2012-2711

2012-0248-0172

Mason, David

2012-2712

2012-0248-0173

Masson, Paul

2012-2713

2012-0248-0174

Maude, Ron

2012-2714

2012-0248-0177

McCormick, James

2012-2715

2012-0248-0175

McDonald, Marie-Josee

2012-2716

2012-0248-0176

McIlveen, Lynn

2012-2717

2012-0248-0178

Melia, Paul

2012-2718

2012-0248-0179

Mennaman, David

2012-2719

2012-0248-0180

Mesaric, Sean

2012-2720

2012-0248-0181

Micieli, Vincent

2012-2721

2012-0248-0182

Millen, Darcy

2012-2722

2012-0248-0183

Mtichell, James

2012-2723

2012-0248-0184

Morley, Joseph

2012-2724

2012-0248-0185

Mortimer, Nicola

2012-2725

2012-0248-0186

Moryta, Melanie

2012-2726

2012-0248-0187

Muth, Peter

2012-2727

2012-0248-0188

Myers, Jeff

2012-2728

2012-0248-0189

Naylor, John

2012-2729

2012-0248-0190

Newland, Joanne

2012-2730

2012-0248-0191

Nicholson, Melissa

2012-2731

2012-0248-0192

Partingon, Michael

2012-2732

2012-0248-0193

Paterson, Brock

2012-2733

2012-0248-0194

Pedlar, Chris

2012-2734

2012-0248-0195

Pegan, Dan

2012-2735

2012-0248-0196

Penic, Michael

2012-2736

2012-0248-0197

Perkins, Catherine

2012-2737

2012-0248-0198

Polihronis, Angelo

2012-2738

2012-0248-0199

Pollard, Philip

2012-2739

2012-0248-0200

Pope, Michael

2012-2740

2012-0248-0201

Powell, Dave

2012-2741

2012-0248-0202

Preusser, Alexander

2012-2742

2012-0248-0203

Prince, Brian

2012-2743

2012-0248-0204

Prince, Cody

2012-2744

2012-0248-0205

Proctor, John

2012-2745

2012-0248-0206

Przychocki, Edward

2012-2746

2012-0248-0207

Rapedius, Randy

2012-2747

2012-0248-0208

Saul, Lita

2012-2748

2012-0248-0209

Scales, Stephanie

2012-2749

2012-0248-0210

Schuemann, Marina

2012-2750

2012-0248-0211

Schumacher, Steven

2012-2751

2012-0248-0212

Scriven, Jeanine

2012-2752

2012-0248-0213

Scriven, Robert

2012-2753

2012-0248-0214

Sebele, Michele

2012-2754

2012-0248-0215

Shewchyk, Michael

2012-2755

2012-0248-0216

Sibbick, David

2012-2756

2012-0248-0217

Siguenza, William

2012-2757

2012-0248-0218

Silva, Nelson

2012-2758

2012-0248-0219

Sindall, David

2012-2759

2012-0248-0220

Smid, John

2012-2760

2012-0248-0221

Smith, Craig

2012-2761

2012-0248-0222

Smith, Stephen

2012-2762

2012-0248-0223

Stavropoulos, Angela

2012-2763

2012-0248-0224

Stevens-Vardjas, Michelle

2012-2764

2012-0248-0225

Stuart, Grant

2012-2765

2012-0248-0226

Tait, William

2012-2766

2012-0248-0227

Tatryn, Stephanie

2012-2767

2012-0248-0228

Tatryn, Todd

2012-2768

2012-0248-0229

Taylor, Steven

2012-2769

2012-0248-0230

Tennant, David

2012-2770

2012-0248-0231

Toplin, Randy

2012-2771

2012-0248-0232

Tougher, Kathy

2012-2772

2012-0248-0233

Tsiodras, George

2012-2773

2012-0248-0234

Vanderdeen, Geoff

2012-2774

2012-0248-0235

Vandersloot, Dave

2012-2775

2012-0248-0236

Varey, James

2012-2776

2012-0248-0237

Varga, Steve

2012-2777

2012-0248-0238

Vieira, Michael

2012-2778

2012-0248-0239

Viola, Victor

2012-2779

2012-0248-0240

Walker, Paul

2012-2780

2012-0248-0241

Walsh, Susan

2012-2781

2012-0248-0242

Ward, Stephen

2012-2782

2012-0248-0243

Warren, Dean

2012-2783

2012-0248-0244

Waterhouse, Cathy

2012-2784

2012-0248-0245

Watson, Christopher

2012-2785

2012-0248-0246

Weliczko, David

2012-2786

2012-0248-0247

Welychka, Randy

2012-2787

2012-0248-0248

White, Craig

2012-2788

2012-0248-0249

White, Jeffery

2012-2789

2012-0248-0250

White, Michael

2012-2790

2012-0248-0251

Whyte, Thomas

2012-2791

2012-0248-0252

Wiemelink, Christopher

2012-2792

2012-0248-0253

Worsell, Graham

2012-2793

2012-0248-0254

Yule, Carter

2012-2794

2012-0248-0255

Zimmerman, George

2012-2795

2012-0248-0256

Zizzo, Christopher

2012-2796

2012-0248-0257

Zwolak, Joe

2012-3775

2012-0248-0271

Johnstone, Paul

2012-3846

2012-0248-0274

Campbell, Craig et al

2012-3847

2012-0248-0275

Caswell, Ken

2012-3848

2012-0248-0276

Gearing, Mark

2012-3849

2012-0248-0277

Pollard, Philip

2012-3850

2012-0248-0278

Pope, Michael

2012-4709

2012-0248-0279

Houston, Robert

2012-4768

2013-0248-0009

Union

2013-0589

2013-0248-0010

Hoye, Jason