Date: 20230126

File: 560-02-38733

 

Citation: 2023 FPSLREB 8

Federal Public Sector Labour Relations and Employment Board Act and Canada Labour Code

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Tim Sterkenburg

Complainant

 

and

 

Treasury Board

(Correctional Service of Canada)

 

Respondent

Indexed as

Sterkenburg v. Treasury Board (Correctional Service of Canada)

In the matter of a complaint made under section 133 of the Canada Labour Code

Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Corinne Blanchette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN

For the Respondent: Adam Feldman, counsel

Heard by videoconference,

September 7 to 9, 2022.

REASONS FOR DECISION

I. Complaint before the Board

[1] This is a complaint under s. 133 of the Canada Labour Code (R.S.C., 1985, c. L-2; “CLC”), alleging a violation of s. 147; that is, a threat of discipline against an employee for carrying out his or her duties as a member of the workplace Occupational Safety and Health (OSH) committee.

[2] In 2018, at the time of the events at issue, the complainant, Tim Sterkenburg, was working at the Kent Institution penitentiary in Agassiz, British Columbia, as a correctional officer classified at the CX-2 group and level. His legal employer is the Treasury Board, but for the purposes of this decision, the employer is deemed to be the Correctional Service of Canada (“the employer” or “the respondent”), to which the Treasury Board has delegated authority for human resources management. The complainant is part of a bargaining unit represented by the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - Confédération des syndicats nationaux (UCCO-SACC-CSN).

[3] The complainant intervened in a situation that was potentially dangerous, and I find that he was right to do it. I also find that the employer could have handled the situation better. However, I cannot find that the employer breached s. 147 of the CLC, and accordingly, I dismiss the complaint.

II. Summary of the evidence

[4] The complainant testified and called two witnesses, Ashley Hepworth, a union representative, and John Randle, at the time a UCCO-SACC-CSN’s regional vice-president.

[5] The employer called four witnesses, Tysha Owens, the deputy warden; Suzanne Sly, a programs manager; Terri Marshall, a correctional manager; and Marie Cossette, then the warden of Kent Institution.

[6] On the whole, the evidence was not really contradictory but rather was coloured by the respective perspectives of employees and management. I must state that I found Ms. Marshall’s evidence the most compelling. Her recollection was very clear, and although she was called by the employer, she spoke very highly of the complainant.

[7] For ease of understanding, I will recount the events in chronological order.

A. CORCAN cleanup

[8] Kent Institution is a maximum-security correctional facility. Its inmate population includes very dangerous and violent offenders. The complainant testified that in 2018, when the events surrounding this complaint occurred, the morale of the employees there was low. While previously, the employees had a good relationship with management, and the joint OSH committee functioned well, by 2018, the communication lines between employees and management were defective. Assaults from inmates were on the rise, so correctional officers felt unsafe. Yet, management seemed more interested in pursuing intimidation tactics against employees, accusing them of harassment, rather than listening to their concerns.

[9] In 1999, when the complainant started working at Kent Institution, there was an employment program for the inmates called CORCAN; the program produced furniture and employed some inmates.

[10] The program had ceased to function at Kent Institution, and the space it had been allocated was used as a storage room and, in the complainant’s words, as a “scrap metal yard”. According to him, it was filled with debris, including old pieces of the furniture-making equipment.

[11] The complainant had worked with violent offenders for a long time; he felt that he knew them well. According to him, dangerous offenders can be unpredictable because they do not follow normal rules. Out of desperation or coercion from another inmate, an inmate about to be released may still jeopardize his status by lashing out violently against correctional officers or other inmates.

[12] As a correctional officer, the complainant is part of the bargaining unit represented by the UCCO-SACC-CSN. Other employees, such as inmate-activity-programs employees, are part of a bargaining unit represented by the Public Service Alliance of Canada, which is made up of several components representing the different federal government departments and agencies. In the CSC, the component is the Union of Safety and Justice Employees (USJE).

[13] On May 31, 2018, the complainant learned from a USJE official that management was planning to start a new program in the CORCAN space and that it had arranged for inmates to clean up the space on June 4, 2018. Evidence at the hearing showed that a memo had been sent to all employees on May 31, but the complainant did not remember reading it on that day but rather on the next day.

[14] The complainant had long been an active member of the OSH committee and often received notices from fellow employees of situations warranting the OSH committee’s attention. In his mind, this was that kind of occurrence: he was being alerted to a potentially quite dangerous situation.

[15] The complainant contacted the program officer in charge of the new program, Jessie Blain, and asked him if he could tour the area. According to the complainant, Mr. Blain readily agreed. Mr. Blain had previously been a correctional officer and had worked with the complainant, who thought they had a good, respectful relationship.

[16] The complainant asked Ms. Hepworth to accompany him to meet with Mr. Blain, to have a witness present. They toured the area, and the complainant noted all kinds of debris that inmates could easily transform into dangerous weapons. He pointed out the dangers to Mr. Blain and said that it was completely wrong to have inmates clean the area — it was just too dangerous for the inmates and the correctional officers who would supervise the exercise, both during the cleanup and afterward, if items were taken for future use as weapons.

[17] According to the complainant, the tone was cordial throughout. He felt that he was doing his duty as member of the OSH committee according to s. 126(1)(c) of the CLC, which reads as follows:

 

[18] The complainant conceded that Mr. Blain might have been flabbergasted, as he had not envisioned all the possible repercussions. In the end, he agreed that he would have to talk to management and to find another solution for the cleanup.

[19] The complainant thought that the matter was resolved. According to him, it was one more instance of voicing his opinion on a dangerous situation and advising his peers. It happened often that correctional officers consulted him on situations in which a work refusal was considered because of potential violence. In his mind, this situation was no different, and he thought that talking to the person directly concerned, the program officer, would be the most efficient way to have the concerns heard and understood clearly.

[20] Ms. Hepworth testified at the hearing. The complainant asked her to accompany him as she was a union representative. She testified that the walkthrough of the CORCAN area was very thorough and very enlightening. According to her, it was definitely dangerous because of the amount of debris and the large size of the area.

[21] Ms. Hepworth testified that Mr. Blain understood the potential danger when it was explained to him and that he seemed to welcome the information. She did not find it unusual that the complainant asked her to accompany him — on the contrary, it was the usual practice to always carry out an inspection with another member of the OSH committee or the union. She stated that the complainant was calm, friendly, and professional throughout the meeting.

[22] Ms. Hepworth also testified to the unhealthy workplace climate at the time. Correctional officers felt that management disregarded their health and safety concerns, despite an increase in violent assaults by inmates.

B. Shift briefing

[23] On the next day, June 1, 2018, the usual shift briefing was held. Every shift starts with a briefing given by a middle manager, who relays information for the day (visits, outings, incidents, etc.).

[24] This briefing differed in one aspect. At the end, Ms. Marshall, who was giving the briefing, added a piece of information that upper management had asked her to transmit: employees were not to alert other employees to potentially dangerous situations but rather were to speak to management about them.

[25] Four witnesses at the hearing testified about the meeting. Although I do not doubt that each witness spoke the truth, I believe that each one’s position and interests coloured his or her testimony. I found Ms. Marshall the most convincing witness on the matter. She remembered the meeting clearly and vividly.

[26] One thing that struck me about Ms. Marshall’s testimony was the unsolicited anecdote she recounted about the complainant.

[27] Ms. Marshall is a correctional manager. She was called by the employer. From the complainant’s testimony, I gather that she is well respected by correctional officers. At the start of her examination-in-chief, she was asked about her work history. She had worked at Kent Institution, left for a while, then returned in 2017. At that point, she offered the following story.

[28] She said that in preparing for the hearing, she suddenly remembered something that happened the very next night after she returned to Kent Institution. A fire broke out, and mayhem ensued with the inmates. In the midst of it all, she recalled seeing the complainant take charge of the situation and calmly direct correctional officers to resolve the situation as quickly, efficiently, and safely as possible. She thought at the time, “Welcome back to Kent Institution” (where fires break out and inmates are dangerous), and how grateful she was for colleagues like the complainant.

[29] Ms. Owens testified that as the deputy warden, the warden (Ms. Cossette) asked her to provide a message to Ms. Marshall, who was to give the shift briefing in the afternoon of June 1, to remind officers that safety concerns should be raised with management, not fellow officers. Ms. Owens also testified that she attended the briefing. According to her recollection, it was a normal briefing. Ms. Marshall went through the usual shift announcements, then added a word about the correct procedure to follow in the case of workplace safety concerns. She was asked if she remembered anything else; she said that nothing stood out and that she felt no harsh tone or animosity from the group.

[30] When asked in cross-examination if it was normal for the deputy warden to attend a shift briefing, she said that it was not; she was there to support the correctional manager if anything arose from management’s message that day.

[31] Ms. Marshall’s recollection was markedly different. She said that it was the most painful briefing she had ever given and one of the most uncomfortable situations she had ever found herself in with correctional officers.

[32] The briefing went normally until she passed on the message about sharing safety concerns with management rather than fellow employees. Mr. Sterkenburg immediately reacted — was it about him and his conversation with Mr. Blain? And what was wrong with warning a fellow employee, especially if you were part of the OSH committee?

[33] Ms. Marshall tried to explain as best she could and as she had understood the message from management. First, the CLC provides that safety concerns must be shared with management, and second, there was a risk of appearing intimidating when speaking forcefully to another employee about possible work refusals because of safety concerns. She wanted the tone to remain general because she did not want to single out the complainant or have the correctional officers’ anger turn against Mr. Blain.

[34] According to Ms. Marshall, the correctional officers reacted vociferously. They were all loud and angry and stated that the intimidation insinuation against the complainant was unwarranted and unjustified. According to Ms. Marshall, she felt the barrage of their anger for some 20 minutes. She did not feel the anger directed at her directly but certainly at management, and she was the only one to hear the officers’ disagreement.

[35] When asked in cross-examination if Ms. Owens was in the room, she said that Ms. Owens was not. She was not only in the back but also around a corner, so that Ms. Marshall did not see her, and Ms. Marshall felt utterly alone. In fact, in her testimony, she said this: “I felt set adrift.”

[36] Ms. Marshall stated that she believed that the staff had reacted so violently because of profound dissatisfaction with the whole project and with management.

[37] According to the complainant, the tone remained respectful throughout, but he did ask if the safety announcement concerned him specifically.

[38] Mr. Randle was a union activist. He had been the local’s president for two terms and at the time was a regional vice-president. He remembered attending the briefing and finding it very odd that the correctional manager talked about the proper procedure for safety concerns. It seemed to him that safety concerns should be shared with those concerned first, as indicated in the CLC.

[39] In cross-examination, the employer made much of the fact that maybe he had not been at the briefing as he was on leave on that day. Mr. Randle stated that despite being on leave, he might enter the institution to attend to union business. He was certain that he had attended the meeting. He did not remember the correctional officers being aggressive; he remembered discussions among the correctional officers after Ms. Marshall had left.

[40] Although Ms. Marshall was the only witness to report a loud reaction to her announcement, I prefer her version. She was directly impacted, and she remained remarkably neutral then and again in her testimony.

C. Aftermath

[41] Ms. Cossette testified that on May 31, 2018, Mr. Blain came to see her; he was visibly upset. Ms. Sly, who was Mr. Blain’s supervisor, also testified that Mr. Blain was very upset after meeting with the complainant about the CORCAN cleanup.

[42] Ms. Cossette was of the view that Mr. Blain had felt intimidated by the complainant and was reacting to the threat of work refusals if the cleanup project were to go ahead. Therefore, she thought that it was important to send the message to all correctional officers that safety concerns should not be raised with employees but rather with management. Therefore, she directed Ms. Owens to provide Ms. Marshall with a message to share at the daily briefing.

[43] Ms. Cossette stated that she could do nothing for Mr. Blain and that he would have had to make a complaint through the harassment complaint process. In cross-examination, she was asked about an investigation into intimidating behaviour by another correctional officer that she had ordered. She answered that the facts were entirely different; that investigation involved unacceptable behaviour that had gone on for a very long time. In this case, it was a one-time occurrence, admittedly related to a valid safety concern.

[44] On June 2, 2018, an OSH committee member sent an email to Ms. Owens that read as follows:

…

Using inmates to clean the corcan [sic] area creates several hazards which require mitigation. This is not a normal way to use inmate workers in this institution. Under the labour code you are required to consult the OSH committee when making this type of change in normal operations. I am therefore advising you, as is my role as a workplace OSH committee member, that if you continue with this action without consultation then you will be in breach of the labour code.

…

 

[45] The email also quoted the provisions of the CLC (ss. 125(1), (z.05), and (z.06)) that the employer would allegedly breach by not consulting the OSH committee before the inmates carried out the cleanup.

[46] Ms. Cossette and Ms. Owens spoke approvingly of this email — it was the proper way to deal with any safety concern, by alerting management directly. They did not comment on the fact that the email seemed to highlight management’s failure to properly consult the OSH committee.

[47] On June 7, 2018, Mr. Blain emailed management, reporting on a walkthrough that day by management, the OSH committee, and union representatives of the CORCAN area and signaling several safety concerns. Management finally decided to have outside contractors carry out the cleanup.

[48] I was presented with evidence of investigations into intimidation complaints. I do not draw any conclusion from this evidence as it relates to people and events that were not before me. However, it does confirm that at the relevant time, management was grappling with what it considered serious intimidation situations.

III. Summary of the arguments

A. For the complainant

[49] The complainant alleges that the employer’s action during the June 1, 2018, briefing of publicly declaring that safety concerns should not be shared with fellow employees but rather with management was a threat of discipline and that it contravened s. 147 of the CLC, which reads as follows:

 

[50] In White v. Treasury Board (Correctional Service of Canada), 2022 FPSLREB 52, the Federal Public Sector Labour Relations and Employment Board (“the Board”) enunciated the principles for determining whether an employer breached s. 147 of the CLC.

[51] Mr. White was a correctional officer at Kent Institution. Following a stabbing incident involving inmates from two units, he refused to escort an inmate from one unit to the other to meet with lawyers because he believed that it created a dangerous situation. The two units were still in lockdown and had not yet been fully searched for weapons. He received a verbal reprimand for not following instructions and for informing the lawyers of the stabbing situation.

[52] The Board found that the three relevant criteria were met: Mr. White acted in furtherance of the CLC and was disciplined, and there was a link between both occurrences.

[53] The same reasoning applies in this case, according to the complainant. He warned Mr. Blain about the safety concerns related to the CORCAN cleanup, in furtherance of the CLC, he was threatened with discipline at the briefing session, and those events were directly linked.

[54] The employer was wrong to say that the proper procedure was to warn management rather than a fellow employee; doing so would contradict s. 126(1)(c) of the CLC. Moreover, the complainant had been a member of the OSH committee for about 17 years. Not being able to speak out about a potential danger would make the OSH committee’s work subordinate to the employer, which was clearly not the intent of the joint OSH committee provided for in the CLC.

[55] Before giving instructions for the reminder to be read at the briefing, Ms. Cossette never reached out to the complainant to hear his version of the events that Mr. Blain had reported to her. Therefore, she was unaware that the complainant had acted at the USJE’s request.

[56] Despite seeming to conclude that Mr. Blain had been intimidated, Ms. Cossette did not attempt to investigate the situation; she simply threatened the complainant with the possibility that intimidation could be found.

[57] The cleanup plan finally did not proceed; this shows that the complainant’s concern was reasonable. Yet, he was threatened with a possible finding of intimidation.

B. For the respondent

[58] The complainant relies on an erroneous interpretation of s. 126(1)(c) of the CLC, which calls for “necessary precautions”. According to the employer, it means that the danger has to be imminent, but it was not in this case. On June 2, the OSH committee contacted management to resolve the situation. There was no immediate danger on May 31.

[59] The employer argues instead that s. 126(1)(g) applies; it reads as follows:

 

[60] The complainant’s reaction to a simple reminder of the proper procedure was unreasonable; there was no need to become upset.

[61] The employer is of the view that the complainant did not act in accordance with the CLC, and therefore, the employer cannot have breached it. The group of correctional officers was reminded of proper procedures. The complainant himself made the link with his situation by asking Ms. Marshall if the reminder followed his conversation with Mr. Blain. Strictly speaking, no threat was made against the complainant personally; the message was couched in general terms.

[62] In fact, Ms. Cossette was concerned for Mr. Blain. He was visibly shaken after meeting with the complainant.

[63] Approaching a fellow employee to quash a project is not helpful in terms of labour relations.

IV. Reasons

A. Analysis

[64] Both parties relied on s. 126(1) of the CLC to support their positions, the complainant arguing that he had a duty to warn Mr. Blain, and the employer asserting that the complainant’s duty was to talk to management about any potential danger.

[65] Throughout his testimony, the complainant alleged that the employer did not take seriously the safety concerns that the OSH committee raised. Ms. Cossette very much insisted on the importance of implementing programs for the inmates. There really seemed to be a disconnect, which most witnesses confirmed.

[66] The applicable test was reformulated in White, at para. 73, as follows:

…

1. Has the complainant acted in accordance with Part II of the Code or sought the enforcement of any of the provisions of that Part (section 147)?

2. Has the respondent taken against the complainant an action prohibited by section 147 of the Code (sections 133 and 147)? and

3. Is there a direct link between (a) the action taken against the complainant and (b) the complainant acting in accordance with Part II of the Code or seeking the enforcement of any of the provisions of that Part?

 

[67] If I consider the test as formulated in White, I find that the complainant did act in furtherance of the CLC as he was genuinely concerned about a dangerous situation and thought that the most direct route to make management aware of it was to raise the alarm with the person directly responsible for the program.

[68] However, I cannot find that the two other criteria of the test are met. The complainant was not disciplined for not following the employer’s procedure. Nor was he threatened. The implication of intimidation underlying the reminder was raised first by the complainant, not the employer.

[69] The issue can be put rather simply: Was the complainant right to warn about the danger of having inmates carry out the cleanup of the CORCAN area? Yes, he was. Was the employer right to state that concerns should be expressed to management rather than to fellow employees? The answer is a qualified yes.

[70] In the context of a maximum-security penitentiary, I do not believe that rules should be rigid. I understand management’s position; if a change of course is necessary because of genuine safety concerns, management must make that decision. Therefore, it only makes sense that management be made aware of the situation. That said, the complainant testified to the fact that as a member of the OSH committee, he was often consulted by fellow employees on dangerous situations, and provided advice.

[71] The reason I cannot find a breach of s. 147 is that the complainant was not sanctioned for speaking to Mr. Blain. He, along with the correctional officers at the briefing, were told the procedure that management wanted them to follow.

[72] The context painted by both sides goes a long way to explaining what I can only term as a misunderstanding between the parties. There is no way of knowing whether Mr. Blain was intimidated, but it is certain that his conversation with the complainant brought about a change to the way the cleanup would be done.

[73] I must note here that a great deal was said about Mr. Blain throughout the hearing, but Mr. Blain did not testify. I told the parties that I would not make an adverse inference against either party for not calling Mr. Blain. Therefore, from all the testimonies, I must infer Mr. Blain’s reaction to the complainant’s inspection and strongly voiced concerns.

[74] The employer made much of the intimidation that Mr. Blain might have felt, but I have no evidence of it. I believe that he was upset, but it is self-serving for the employer to state that the complainant caused that upset. It makes more sense to think that Mr. Blain was upset that his project might be derailed when it was pointed out to him how dangerous it was to have inmates do the cleanup.

[75] Considering strictly the events of May 31 and June 1, 2018, it is difficult to refrain from thinking that this is just a mountain made out of a molehill. The complainant warned one person; he should have warned another, according to the employer, and was reminded that he should have.

[76] However, reducing the issue thus ignores all the evidence I heard that constitutes the very important background to these events. I list here the facts that I find were true at the time of the events at issue:

· a maximum-security penitentiary that houses dangerous, violent, and unpredictable inmates;

· an unhealthy relationship between management and its correctional officers, and a disregard on the part of management for the OSH concerns voiced by the committee;

· a true and honest concern on the part of the complainant that the plan to have inmates clean the CORCAN area was potentially very dangerous;

· a change in plans by the employer that followed very closely the complainant’s raising of the issue; and

· the correctional officers’ extreme sensitivity to the notion of being accused of intimidation, linked to other situations (about which I received indirect evidence).

 

[77] Instead of giving a message that could imply a vague menace of finding intimidation, upper management could have spoken directly to the OSH committee about the safety issue (it needed to be reminded to). Management had the right to state that employees had to raise safety issues with it for a change of direction. It is unfortunate that raising it in a briefing session provoked a reaction brought on by the correctional officers’ sensitivity to possible harassment and intimidation accusations.

[78] It is clear from the evidence I heard, including Ms. Cossette’s, that the relationship between management and the OSH committee, and with the complainant, was not positive and collaborative. Because of that context, communication was, to put it mildly, difficult. Management should have known that vaguely intimating a finding of intimidation would raise the complainant’s hackles.

[79] Ms. Cossette made much of the fact that she could do nothing about Mr. Blain feeling intimidated (according to her). He would have had to make a complaint for anything to be done.

[80] This makes absolutely no sense and demonstrates the deficient communication that was pervasive in the institution. Ms. Cossette could have had a conversation with the complainant and the OSH committee to address Mr. Blain’s concerns. Again, I cannot find that the employer contravened s. 147 of the CLC, but I am appalled at how poorly the situation was handled and at how little respect was shown to the complainant. I have no doubt whatsoever that his motivation was his concern for the safety of employees and inmates. That should have been noted and respected.

B. Conclusion

[81] In the end, the employer changed its course and had others carry out the cleanup. It did not sanction the complainant for what it considered was the wrong way to go about voicing safety concerns. I find that it did not threaten to impose discipline, although that was what the complainant understood, in no small part because of the employees’ perception of management’s apparent disregard for health and safety concerns and its emphasis on intimidation.

[82] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[83] The complaint is dismissed.

January 26, 2023.

Marie-Claire Perrault,

a panel of the Federal Public Sector

Labour Relations and Employment Board