GSB#2018-0910

UNION#2018-0248-0138

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Alaimo)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michelle LaButte Treasury Board Secretariat Employee Relations Advisor

HEARING

October 29 and 30, 2019

DECISION

1The Employer and the Union at the Hamilton Wentworth Detention Centre (“HWDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without written reasons.

2Vince Alaimo filed a grievance dated April 24, 2018 claiming that the Employer improperly disciplined him when it gave him a two day suspension without pay. The remedies sought include that the discipline be removed from his record, and that he be recompensed for the monies he lost. Mr. Alaimo is a Correctional Officer 2, who has worked at the HWDC for 29 years. He had never been disciplined before, or indeed after the incident that led to the filing of this grievance.

3By a letter dated April 16, 2018, from Bruce Laughlin, Superintendent at the HWDC, the Grievor was advised that as a result of an incident on February 2, 2018, in which the Grievor’s conduct and use of inappropriate verbal profanities towards a Deputy Superintendent were found to be contrary to the Code of Conduct and Professionalism Policy, he was being given a two day suspension.

4As this is a decision made pursuant to Article 22.16 of the collective agreement, it is unnecessary to outline all the details of the incident that led to the Grievor’s discipline. However, a general outline follows.

5On February 2, 2018 the Grievor was assigned to work on the Psychiatric Unit, on which he has worked for some time, and is comfortable doing so. Upon his arrival and review of the log, he noted that three inmates who had a recent history of assaulting staff, had been moved to the unit from Segregation. All doors to Psychiatric Unit are kept locked at all times because the population is considered vulnerable. However, that also means that if there is an altercation on this unit, staff from other units nearby cannot easily come in to help the COs in the Psychiatric Unit.

6Three COs staff the Psychiatric Unit: One remains on observation; one Float CO escorts inmates to appointments, etc. and one has to be in the common area or work as needed on the Unit. Since the Grievor had noted that there were three inmates who had a recent history of assaulting staff, he was concerned about his safety because if one CO was off escorting an inmate, and one had to remain on observation, then if he was being assaulted by an inmate, he would be extremely vulnerable as all doors are locked, and help could not arrive quickly. The Grievor wrote his concern in the log, and suggested that when the Float CO was off the unit escorting an inmate, and if one of the three particular inmates was in the Day Room with only one CO, that another CO be assigned to the Psychiatric Unit so that there would be at least two COs in the Day Room should there be an assault on staff.

7The Grievor also raised this concern with his superior, Sergeant Vivian. He requested that the issue be raised at the morning management meeting, and that the Sergeant tell the Grievor what the outcome was. Sergeant Vivian later reported back to the Grievor that Deputy Superintendent of Operations, Mr. Scott Black, had denied the request; had indicated that if the Grievor did not like working in the Psychiatric Unit, Mr. Black could reassign him; and had also advised that Mr. Black was going to be in his office that day if anyone wanted to talk to him.

8At around 10:15 a.m. the Grievor was given permission to go to see Mr. Black, and took Mr. Chris Pinder, a union steward, with him. The Grievor explained to the Deputy Superintendent that he had chosen to work on the Psychiatric Unit; that he had been offended and insulted by Mr. Black’s response to his concern, and to the Grievor’s proposed solution for ensuring the safety of the CO on duty while the three inmates of concern were on the unit in a common area. According to the Grievor’s Occurrence Report, which was written on February 7, 2018, closer to the time of the incident, Mr. Black was responding aggressively to the Grievor’s comments, even though the Grievor was only seeking to have an officer provided when the float officer was off the unit, one of the three inmates was around, and the in charge officer was alone. When Mr. Pinder tried to speak up, Mr. Black told him he was not to speak and was just to take notes. When asked why not, Mr. Black apparently accused the Grievor and Mr. Pinder of “pigeonholing” him, and setting him up when he had no witness. Mr. Black indicated he would get a representative himself, and that they would meet in the board room in ten minutes. He told the men that the conversation was over and to get out of his office.

9According to the Grievor, Mr. Black created an atmosphere of hostility and fear, and the Grievor was feeling bullied and intimidated. As he left, he told Mr. Black that he would “be in my safe place”, and went down the hall. Mr. Black followed out of his office and shouted to ask what the Grievor meant, and whether the Grievor was doing a work refusal. The Grievor advised Mr. Black that he was going to the lounge to wait till Mr. Black got a representative, so that they could meet in the board room. The Grievor admits that at this juncture he said “You’re not the only one who could be not nice, fuckin tough guy”, and that he told Mr. Black to “fuck off”, to which Mr. Black responded by telling the Grievor to go home right away.

10Mr. Pinder’s Occurrence Report confirms that Mr. Black was taking an aggressive tone with the Grievor when they were speaking in his office. He recalls that the Grievor told Mr. Black to “fuck off” as they were leaving Mr. Black’s office, and that Mr. Black told the Grievor at that juncture that he could go home for the day.

11According to the Grievor, shortly after the heated exchange, the Grievor was called to see Mr. Jones, who told him that he felt that the Grievor was too upset to resolve the issue that day; that he did not know what the issue was, but that he was suspending him for the rest of his shift. The Grievor asked what that meant as he had never been suspended before. He was told that it would be a suspension with pay for the rest of that day, and that the Grievor would be asked to write a report later. After taking a phone call, Mr. Jones advised the Grievor that he was being suspended with pay until the following Wednesday, that he could go and collect his belongings, and that Mr. Jones would escort him out, as that was the protocol.

12Deputy Superintendent Black’s Occurrence Report about the incident indicates that the Grievor told him that he, the Grievor, was not a nice person either, and that Mr. Black was a “fucking bird”. He also states that the Grievor was yelling, as he went down the hall, “You’re a fucking tough guy, well I’m a tough guy too”. The Occurrence Reports of Staff Sergeant Mike DuCheneau, Sergeant M. Vieira, and Deputy Superintendent Ed Leppert also note that the Grievor was using the word “fuck” or “fucking bird” in his loud comments to Mr. Black. I am advised that in the prison system, the word “bird” means a “goof”.

13Having considered the submissions of the parties, there is no doubt that the Grievor used profane and derogatory language towards a manager. While it would appear that Mr. Black was behaving in an aggressive and confrontational manner towards the Grievor, there is no evidence that he had been using profanity. In addition, the Grievor’s angry statements were heard by many of his superiors, as he was in the administrative wing of the facility at the time, thus undermining the authority of management. His conduct was a breach of the Employer’s Code of Conduct and Professionalism Policy.

14The Grievor’s long service and unblemished record up to the date of this incident are both significant mitigating factors. As well, the Grievor was forthright, and admitted that he had used profane language towards Mr. Black. While the Grievor must understand that he cannot use profane language in the workplace, based on these mitigating factors, the two day suspension is reduced to a one day suspension. The Employer is directed to compensate the Grievor for any lost wages and benefits that flow from the reduction in the quantum of the suspension.

15I will remain seized in the event there are any issues that arise out of the implementation of this award.