OPSEU (Miller et al) v. The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services)

Before D. Stanley Vice-Chairperson
P. O'Keeffe Member
R. Redford Member

For the Complainant: C. Paliare
Counsel
Gowling, Straty & Henderson
Barristers & Solicitors

For the Respondent: L. McIntosh
Law Officer
Crown Law Office Civil
Ministry of the Attorney General

Hearing: January 10, 1994

We are dealing here with complaints brought under the Crown Employees Collective Bargaining Act alleging breaches of various sections of the statute which protect employee organizations and employees from interefrence in the exercise of rights they have in relation to the collective bargaining process. These provisions read as follows:

29(1) No person who is acting on behalf of an employer shall participate or interfere with the selection formation or administration of an employee organization or the representation of employees by such an organization, but nothing in this section shall be deemed to deprive the employer or any person acting on behalf of the employer his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

29(2) The employer or any person acting on behalf of the employer shall not,
(a) refuse to employ or continue to empoy or discriminate against a person with regard to employment or any terms or conditions of employment because the person is exercising any right under this Act or is or is not a member of an employee organization

(b) impose any condition on an appointment or in the contract of employment that seeks to restrain an employee or a person seeking to restrain an employee or a person seeking employment from becoming a member of an employee orgainzation or exercising any right under this Act

(c) seek by intimidation, by threat of dismissal or by any other kind of threat or by the imposition of a pecuniary or any othermeans to compel an employee to become or refrain from becoming or to continue or to cease to be a member of an employee organization, or to refrain form exercising any other right under this Act, or

(d) refuse to employ or to continue to employ or discriminate against a person with regard to employment only because the person refused to make a contribution or expenditure to or on behalf of any political party or to or on behalf of a candidate for public office,

but no person shall be deemed to have contravened this subsection by reason of any act or thing done or omitted in relation to a person employd in a managerial or confidential capacity.

29 - (3) No person or employee organization shall seek by intimidation or coercion to compel any perosn to become or refrain form becoming or to continue to be or cease to be a member of an employee organization or to refrain from exercising any rights under this Act or from performing any obligations under this Act.

... 37- (1) The employer or any person acting on behalf of the employer shall not
(a) refuse to employ or continue to employ a person

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or he has participated in or is about to participate in a proceeding under this Act.

...

Miller

Derek Miller is a Correctional Officer who has been at the TEDC since March 15, 1982. He has been actively involved in the Union since January 1987, when he became a steward. In February 1988, he was elected secretary-treasurer of the local. He was Chief Steward from March 1989 to February 1991, when he became President of the local. Miller's complaint relates to a lawsuit that was brought against him by Simpson, the Superintendent of TEDC, and generally to Simpson's treatment of him throughout the period relevant to these complaints. His complaints reads as follows

On or about March 9, 1989, Mr. Derek Miller, a Correctional Officer II, employed at the Toronto East Dentention Centre (TEDC) participated in a Union demonstration outside TEDC.

Mr. Miller was on a regular day off and at the time of the demonstration, the secretary/treasurer of OPSEU Local 583. The demonstration was baout a number of workplace issues at TEDC, including allegations of racial and sexual harassment. There was media coverage and the Toronto Star printed a story unde rthe heading: "Jail Supervisors Subject Guards to Sex Harassment Union Says." On or about March 13, 1989, Mr. George Simpson, Superintendent of TEDC ordered Mr. Miller and Ms. Sheran Johnson, President Local 582 and Executive Board Member of OPSEU to his office, for a meeting.

Neither Ms. Johnson or Mr. Miller were advised about the reasons for the meeting. At the outset of the meeting, which tok place in Mr. Simpson's office, Ms. Johnson and Mr. Miller were handed a letter signed by Mr. Simpson. The letter stated they must tell Mr. Simpson all they know abot sexual and racial harassment at TEDC, or apologize in writing, or Mr. Simpson would file a lawsuit against Ms. Johnson, Mr. Miller, Ms. Clancy, the Union, and the Toronto Star. Mr. Miller and Ms. Johnson made no comment in response to these threats by Mr. Simpson.

On or about March 15, 1989, Mr. Miller was again summoned to Mr. Simpson's office. Upon arrival Mr. Simpson told Mr. Miller he would not be pursuing his libel suit against the Union and Mr. J. Clancy. Mr. Simpson also said the Deputy Minister's Office had sent an Inspector McMaster to investigate the demonstration. Mr. Miller was directed to an office directly adjacent to Mr. Simpson's, where Insp. McMaster was located, and waiting for him. Insp. McMaster told Mr. Miller that he was operating under the Ministry of Correctional Services Act, Section 22, and he was toinvestigate the demonstration. Insp. McMaster made a number of statements and asked Mr. Miller a number of questions including:

- wanted to know if the Union had trained Mr. Miller and allowed him to speak to the prss?
- Told Mr. Miller that he should not make statememtns like that to the press
- wanted Mr. Miller to tell him all he knew about racial and sexual harassment at TEDC

Before Mr. Miller could respond, Insp. McMaster asked him if he was going to co-operate and stated that a refusal to co-operate would result in instant dismissal. Mr. Miller was aware that section 22 of the Correctional Services Act states "The Minister may designate any person as an inspector to make such inspection or investigation as the Ministry may require in connection with the administration of this Act, and require in connection with the administration of this Act, and the Minister may and has just cause to dismiss any employee of the Ministry who obstructs an inspection or investigation or withhold, destroys, conceals or refuse to furnish any information or thing by an inspector for the purposes of the inspection or investigation"

As a result Mr. Miller said he would cooperate, but wished to call his lawyer Mr. Peter J. Lukasiewtz

Mr. Miller called his lawyer in the presence of Insp. McMaster, and after a brief discussion, he handed the phone to Insp. McMaster, who spoke with Mr. Miller's lawyer. When Insp. McMaster hung up the phone, and after further discussion with Mr. Miller, he said his investigation was at an end and the meeting concluded.

On or about April 05, 1989, Mr. Miller was once again ordered to Mr. Simpson's office. On arival in the office, Ms. Gail Warner, (Mr. Simpson's secretary) turned to a man who was sitting there, and said "it's o.k.". The man got up and asked Mr. Miller if he was Derek Miller, and handed Mr. Miller a writ stating that Mr. Simpson has commenced legal action against him and he Toronto Star.

Mr. Simpson subsequently withdrew the suit against the Toronto Star, but has maintained his personal suit against Mr. Miller and is seeking approximately two-hundred thousand dollars ($200,000) for alleged defamation of character.

Mr. Miller never heard from Mr. McMaster again, nor has he been told the outcome of the investigation under section 22 of the Ministry of Correctional Services Act.

On or about March 02, 1990, a notice was apparently posted on a bulletin board at TEDC the notice contained the following statements

"I DISSENT"
It is quite obvious that management and the Metro East Detention Centre does not recognize and respect the seniority rights of black correctional officers.

If the situation was the reversed, there is no way a black officer with almost ten (10) years less seniority than his white counterpart would have been selected over his white counterpart for a simple and mundane job as medical runner. In such a case seniority would have been invoked with zeal.

It is written "by their fruits you shall know them"

E. (Manny) Vidal

c.c. Supt. Simpson

Also on or about March 2, 1990, Mr. Miller who was now Chief Steward of Local 582, was called to Mr. Simpson's office. On arrival Mr. Simpson told Mr. Miller that as the Local President Ms. Johnson was not in the institution, he was the Acting President of Local 582. Mr. Miller advised Mr. Simpson that he was Chief Steward and he would not assume any other psoition at Mr. Simpson's direction.

Mr. Simpson aske d Mr. Miller his opinion of the February 19, notice. Mr. Miller did not offer an opinion. Mr. Simpson asked if Mr. Viday was a local steward and Mr. Miller advised Mr. Simpson he was not. Mr. Simpson told Mr. Miller he should speak to Mr. Vidal about his notice, because he may have difficulaty proving what he has written. After the meeting, Mr. Simpson and Mr. Miller exchanged several letters about the nature and purpose of this meeting.

On or about March 20, 1990, Mr. Simpson wrote Mr. Miller and said the following:

"The sole purpose of the meeting was to advise you that I considered the action of Mr. Vidal less than prudent and that I had instructed that the offending notice be removed from the bulletin board. Also, given the nature of the complaint, in the interest of good staff relations, I felt that the matter should be dealth with immediately and that the local executieve would wish to assist in dealing with a situation that had the potential to be highly volatile." Given the nature of Mr. Vidal's allegations and Mr. Simpson's personal lawsuit against Mr. Miller, it stretches credulity to the breaking point to accept Mr. Simpson's explanation about the purpose of the meeting.

It is clear that the Ministry had no desire to pursue Mr. Miller over anything that he was quoted to have said in any of the articles following the picket activity. The "investigation", ostensibly conducted by the Ministry was done at Mr. Simpson's instigation and hardly appears to have been a sincere effort to investigate the substance of the Union concerns. We conclude that the whole purpose of Simpson's lawsuit was to intimidate Miller in his capacity as union president. We conclude that for Simpson to have Miller come to his office in TEDC to be served with papers relating to what Mr. Simpson maintained was a private lawsuit was an act of intimidation and an abuse of Simpson's management authority. We acknowledge that it was senior management in te Ministry who finally prevailed in brokering a settlement of the matter. However, in our view, it ought to have been made clear to Simpson much earlier that, in these circumstances, maintaining his lawsuit against the President of the local union was incompatible with Simpson's continued employment in the Ministry.

We conclude that the complaint was substantiated and that there was a violation of s. 29(1) and 29(2) (c) of CECBA.

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