GSB#2010-2654

UNION#2010-0234-0283

Additional grievances 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 (Pacheco)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

November 23, 2018

DECISION

1This is another decision dealing with production requests made by the Union in a case involving a number of discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. Ms. P. Fernandes, Acting Regional Transfer Manager, and Mr. A. Garbacz, a Security Manager at the Maplehurst Correctional Complex ("Maplehurst"), are Employer witnesses who have not completed their testimony. They were called to give evidence about what can be described as the "computer refresh issue". The Union has requested that the Employer produce additional documents prior to the completion of their testimony. I will address these production requests by referencing the list of items dated October 24, 2018 (the "List") prepared by the Union. The Employer has complied with the requests set out in items 5a, 9 and 10 on the List. As a general matter, the Union justified many of its requests on the basis that the documents sought would provide a more complete picture of the circumstances of the computer refresh and data wiping that occurred in September 2017. Even if this were the case, I note that this would not necessarily make the requested documents arguably relevant.

2The Offender Transportation Operations (the "OTO") is a tenant of Maplehurst. The computers used by the OTO are owned by Maplehurst and Mr. Garbacz is the site contact for IT assets within Maplehurst. Mr. Garbacz participated in the computer refresh that occurred at Maplehurst in September 2017. Some of the computers in the area occupied by the OTO and used by bailiffs were refreshed at that time. The vendor involved in the refresh of computers in the staff training room was Compucom.

3The Union seeks keypress data from September 7, 2017 to September 18, 2017. The purpose of this data is to provide information about who had access to rooms in the OTO area where computers were located during the specified period. In my view, the question of who had access to the rooms in the department for over a week in September 2017 will not provide information that is arguably relevant on the computer refresh issue. Mr. Garbacz indicated that he used his master key to gain access to rooms with computers in the OTO area. This Union request in item 1 on the List is denied.

4The Union requests a snap shot, photo or list of the 200-300 emails Ms. Fernandes received between September 8 and September 18, 2017. Ms. Fernandes was away on vacation as of late afternoon on September 8, 2017 and returned to work on September 18, 2017. Some of the emails she received in this period have been introduced in evidence. I am not satisfied that the documents requested by the Union are arguably relevant. This request in item 2 on the List is denied.

5The Union requests the MS properties for the Occurrence Report ("OR") submitted September 18, 2017 by Ms. Fernandes. I fail to see how the MS properties of this OR are arguably relevant in the absence of anything to question the authenticity of the document or the testimony of Ms. Fernandes about her OR. The request in item 3 on the list is denied.

6The Union requests all emails, blackberry pin messages or text messages between Compucom, Ms. Cameron, Mr. Dykstra, S. Liu, E. James, Mr. Garbacz, Mr. Watson, Ms. Fowler, Mr. Moxam and G. Bryant regarding the refresh and data wiping from September 1, 2017 to the present. The Employer indicated that there were no blackberry pin or text messages between Compucom and the named individuals and between the named individuals. Employer counsel advised that he would make further inquiries about whether there were relevant email exchanges between Compucom and the named individuals and between the named individuals. Some of the emails requested appear to be arguably relevant. However, the Union's request is overly broad with respect to the time frame and with regard to the number of named individuals. Therefore, I direct the Employer to produce emails in its possession between Compucom, Mr. Garbacz, Ms. Cameron, Mr. Dykstra and Mr. Watson during the month of September 2017 that relate to the refresh and data wiping.

7With respect to the request in item 5 (b) on the List, the Union is seeking,

"Documents setting out when bailiff operations' computers refreshed in September 2017 arrived at MHDC for disposal." In effect, the Union is looking for any documents that would set out a time trail for the bailiff computers as part of the refresh process. The Employer appears to have asserted that no such documents exist. Since such documents would be arguably relevant to the bailiff computers refresh process, I would direct the Employer to produce them if they exist.

8The Union requests cell and office phone records for Mr. Moxam, Ms. Fowler, Ms. Fernandes, Mr. Watson, Mr. Garbacz and Mr. Dykstra for the period from September 7 to September 18, 2017. The Union suggested that these phone records might show a sudden exchange of phone calls that might help to explain what happened with the refresh of the bailiff computers. As I indicated when I addressed a previous request for phone records, I cannot imagine how the requested phone records could be of any arguable relevance. This Union request in item 6 on the List is denied.

9The Union requests a copy of Ms. Fernandes' email regarding her September 2017 vacation request and Mr. Dykstra's email authorizing her vacation. As well, the Union requests the email with attached memo to southern region bailiffs advising them of Ms. Fernandes' vacation and temporary reporting structure. The Employer advises that no such emails ever existed. Even if they did exist, emails dealing with subjects of this sort would not be arguably relevant to the computer refresh issue. The Union has not indicated that there is any dispute about when Ms. Fernandes took her vacation in September 2017. The Union's requests in items 7, 8 and 11 on the List are denied.

10The Union requests a copy of the log book compliance form or forms that succeeded the compliance form entered as exhibit #104. The creation of a new form to replace a form that is an exhibit in this proceeding does not make the new form arguably relevant. This Union request in item 12 on the List is denied.

11The Union requests copies of the 127 wipe out certificates relating to the September 2017 refresh that included the bailiff's computers. The relevant bailiff computers were a small component of the refresh process in September 2017. The wipe out certificates requested may assist in providing a complete picture of the refresh process. Therefore, I direct the Employer to produce to Union counsel the

127 wipe out certificates relating to the computer refresh in September 2017.

12The Union requests correspondence Mr. Garbacz had with the Superintendent of Maplehurst or anyone else in management with respect to changing the date of the refresh. The Employer advises that no such correspondence exists and therefore cannot be produced.

13The Union requests the Maplehurst sign-in sheets for when Compucom's technicians signed in between September 9-15, 2017. These sheets are not arguably relevant. The Union has not disputed that Compucom's technicians were present at Maplehurst for the computer refresh. I will therefore not direct the Employer to produce the sheets referenced in item 15 on the List.

14The Union requests the HPRO records for Correctional Officers signed up for overtime between September 4 and October 2, 2017. In my view, the HPRO records for Correctional Officers for the requested period would not be helpful in providing any arguably relevant information relating to the computer refresh process. This Union request in item 16 on the List is denied.

15The hearing of Mr. Pacheco's grievances shall proceed on the dates previously scheduled.

Dated at Toronto, Ontario this 27th day of December 2018.

Appendix A

GSB Number

OPSEU File Number

2012-0727

2012-0234-0066

2013-3214

2013-0234-0359

2014-0350

2014-0234-0061

2014-3305

2014-0234-0458

2014-3846

2014-0234-0508

2014-4854

2015-0234-0030

2015-0390

2015-0234-0058

2015-0494

2015-0234-0069

2015-0495

2015-0234-0070

2015-0496

2015-0234-0071

2015-0913

2015-0234-0085

2015-0914

2015-0234-0086

2015-0915

2015-0234-0087

2015-0916

2015-0234-0088

2015-1310

2015-0234-0108

2015-1311

2015-0234-0109

2015-1312

2015-0234-0110

2015-1313

2015-0234-0111

2015-1314

2015-0234-0112

2015-1315

2015-0234-0113

2015-1316

2015-0234-0114

2015-1317

2015-0234-0115

2015-1318

2015-0234-0116

2015-1319

2015-0234-0117

2015-1320

2015-0234-0118

2015-1321

2015-0234-0119