HomeMy WebLinkAbout1987-1466.Brlek et al.88-10-211 \ C?
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1466187, 2193107, 2194/87, 2196107,
2197107, 2212187, 2213107, 2364/07
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
OPSEU (Joseph Brlek et al)
Crievors
and
The Crown in Right of Ontario
(Ministry bf Correctional Services)
Employer
N.V. Dissanayake Vice Chairperson
P. Klym ,Hember
D,-Wallace Hembe;
For the Grievers-: R. ROSS Wells
Counsel
cowling & Henderson
Barristers and Solicitors, *
,For the Employer: S.J. Shemie
Counsel
Hicks Morley Hamilton Stewart Starie
Barristers and Solicitors
Ilt-aring: April 28, 1988
April 29. 1988
May 10, 1988
DECISION
The present arbitration arises out of eight
.individual grievances filed by weight employees employed
as correctional officers at the Niagara Det&tisn
Centre. The grievances claim that the Employer has
violated article 18.1 of the collective agreement:.
While the grievances are somewhat differently worded the
issue raised in each is the same. Therefore it was
agreed. that the eight grievances xhould be heard
together.
The following wording (file 2197187) is typical of
the allegations raised and remedy requested in the
grievances:
I grieve a breech of the collective agreement
specifically - but not exc,lusively - article
18.1 in that I am being forced to work in an
unsafe environment under unsafe conditions,
namely - .S,econd Floor Segregation at the
Niagara Detention Centre, without thought of
my well being by administration.
The settlement desired is described as follows:
The Administration imnediately cease’ from the action of
having me enter and check second floor segregation as
well as main floor segregation alone - Permanent staff
be posted on a 24 hour basis for the entire unmanned
seq. areas.
Article 36.1 of the collective aqrcer;,e.?t provides:
18.1 The Employer shall cot-‘: ;:rue to nake
reasonable provlslons for the safety and
. . L
health of its employees during the hours of
theirempioyment. 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.
The ' parties agreed that in determining rhe
grievances, the Board should consider the facts as they
existed as of the time of the hearing and not the time
of filing of the grievances. .-
ISSUE OF JURISDICTION
At the commencement of the hearing, counsel for the.
Employer raised an objection to this Board's --
jurisdiction to entertain.the grievances. The objection
is based on section 18(l) of the Crown EmD~oYees
Collective Baraainina Act, which reads as follows
18. (1) EverJi collective agreement shall be
deemed to provide that it is the exclusive
function of the employer to manage, which
function, without limiting the generality of
the foregoing, includes the right to
determine,
(a) employment, appointment, complement,
organimtion, assignment, discipline,
dismissal, suspension, work methods and
procedures, kinds and locations of'equipment
and'classification of positions:and
(b) merit system, training a'nd development,
apDraisa1 end superannuation, the governing
principles of which are subject to review by
the employer with the bargaining agent.
and such matters will not be the subject of
collective bargaining nor co:ne within the
jurisdiction cf a board.
’ -I-
Counsel submits that the gist of ti-ic grievances is
that Ch.2 ievel of staffing and work Gethods are such
that reasonable safety does not exist, end that the
grievers are requesting that the Board review the
adequacy of the staff complement by interpreting
article 18.1. Counsel submits that the Board has no
jurisdiction to do so because section 18(l) of the Act
declares that inter elia, "organization" and
"complement", are exclusive functions of the Employer
and that such matters "will not be the subject of
collective bargaining nor come within the jurisdiction
of a board." Counsel contends that the relief
requested, namely that 24 hour staff be posted in the
segregation area, indicates that the gist of the
grievance is not s health and safety concern, but one
relation to the staffing methods. Counsel further
submits that any remedy the Board may devise-if it finds
a violation will necessarily impinge of ianagement
rights and that the Board has no jurisdiction to devise .-
such ‘a remedy.
.
I
Counsel for the Union contends that almost every
grievance relating to health and safety under erticle
18.1 arises cut of matters that may touch upon matters
such es organization. complement, work methods and
equipment etc. If the Emplcyer's position is right,
counsel submits that article 16.1 mlgh& as well be
, - 4 -
deCi?tred void. Counsel submits tnat in that event, the
Em?lOyer wou:'ld have bargained in bad -faith when it
negotiated article 18.1 In his view, if the real issue
.raised in the grievance is a health and safety issue,
the Board has jurisdiction even if it may incidentaliy
impinge on a management right. Counsel characterise;
the gist 'of the grievance as relating safety, namely
"whether it is reasonably safe to have-a Correctional
Officer enter the segregation area alone, after the
inmates have been left unobserved for 20 to 30 minutes
and sometimes even up to 45 minutes, and he cannot know
what is beyond the door or what had gone on during the
past half hour or more.” He submits that the grievors
ha+e suggested a'remedy they prefer and that if the
Board finds a violation of article 18.1, it has a broad
authority, and indeed an obligation, to remedy that. He
relies on the Divisional Court's decision in OPSEU
iBerry et all (unreported). However, Counsel submits
that even if the Board decides that the remedy sought is
not within its jurisdiction, the. Board can provide an
alternate remedy it deems fit.
. .
The Union relies on the Board's decision in the
policy grievance in OPSEU and the Ministry OL
Correctional Services, 1252/85 (Joliffei. There also
the grievance was based on article 18.1. The safety
issue is summarised in the foliowing p:*ssaqe ot tk.e
.
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decisibn:
AS appears from the grievance itself, the
employees' complaint is that one officer is
required to enter the day room alone twice
each hour during the evening when all or most
of the Wing's inmates are watching television
or playing cards there, an inspection during
which one or more of the inmates may express
resentment against an interruption of their
recreational activities. It is alleged tha.t
the requirement exposes officers to unusual
risk, sometimes evidenced by physical
obstruction as well as verbal abuse.
The Employer in that case also raised an objection
to the Board's jurisdiction, relying on section 18(l) ,of
the Act. The gist of the Employer's jurisdictional
argument is capsulized by the Board as follows:
He submitted that even if the Board finds
reasonable provisions for health and safety
have not been made at Millbrook. the remedy
sought (a "cease and desist" order) would not be within the jurisdiction of the board,
having regard to the restrictions imposed by
Section 18(l) of the &&. He said that
"whatever the remedial authority of the Board
may be. it does not include those matters that
(in the words. of 18(l)) will not be the
subject of collective bargaining nor come
within the jurisdiction of a board."
In a unanimous decision, the Board dismissed the
Employer's preliminary objection. The reasons for the
decision are set out .in the following excerpt:
The grievance was based on Articie 18.1, in
which the Employer had agreed to "continue to
make reasonable provisions for the safety,and
health of its employees during the hours of
their employment."
It is also required by law in p:iragraFh (4) Of
subsection IL), Section 14. In the
~ccup_a~ip~al-~.e.a~l~f~h_ bind.. safetr.~~Wt that "an
employer shall... tase every precaution
reasonable in the circumstances for the
protection of a worker." This prcbvision is
made binding on the crown by Secticn of the
same A&, in which subsection (2) is perhaps
even more important than subsection (11:
2. - (1) This Act binds the Crown and
applies to an employee in the service of
the Crown or an agency, board, commission
or corporation that exercises any
function assigned or delegated to it by
the Crown.
(2) Notwithstanding anything in
any general or special Act, the
provisions of this Act and the
regulations prevail.
It is true that Section 18(l) of the m
Bmmloyees Collective Baraainina Act appears-
at first sight - to give management the
unfettered and exclusive function to determine
"work methods and procedures",. as expressly
stated in paragraph (a) of 18(l).
Nevertheless, subsection (2) in Section 2 of
the Occuoational Health and Safetv Act
provides a complete answer to the-argument
that Section 18(l) of the C.E.C.B.A.. is
paramount.
The answer is that the provisions of the O.H.
& S-Act prevail over Section 18(l) of the
C.E.C.B.A. Specifically, Section 14(2) (g) of
the 0.H.M. Act that the employer shall "take
every precaution reasonable in the.
circumstances for the protection of a worker"
is the paramount law and prevails over
Section 18(l) of the C.E.C.B.A. Section
14(2)(g) happens to be to the same effect as
Article 18.1 of the idllective agreement.
Moreover, the O.H.&S. Act was enacted in.1978
- after the C.E.C.B.A. had become law.
For the reasons stated above, the jurisdict,ion
of this Board is not barred by Section 18(l)
of the C.E.C.E.A.
Mr. Shamie for the Employrr recognises that the
Joliffe award runs directly caxter to his position.
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The pos1 t LO,11 taKe" 111 that case by cne Em,pl~oyer (which
incidentally WCiS also cne Mlniatry cf Correctional
services) was the same 3s the cne taken by the Employer
in this case and it was rejected by the Board.
Nevertheless, it is submitted that we should decline to
follow the Jolliffe award on the grounds that it is
"manifestly wrong". Counsel submits that the Board in
that case committed a serious jurisdictionpl error by
purporting to derive primary jurisdiction to hear the
grievance from the Occupational Health and Safety Act.
It is not necessary for us to comment on the
Jolliffe. award because in our view, the Board has
jurisdiction ,to.hear the present grievances quite apart
from the Occupational Health and Safety Act-
The Employer relied on Re Dickie, 0314/85 (Palmer).
There the grievance alleged that the grievor had been
improperly denied a merit increase. The Employer raised
an objection to the- Board's jurisdiction to entertain
the grievance and relied on section 18(l) of the Act.
The Board reviewed section 1811) and concluded (Board
,*
Member R. Russell dissenting) as follows:
Clearly, the foregoing indicates that the
"merit system” is something which is a
"exclusive function of the employer to
manage. " Further, the final words of that
section appear dispositive of the present
matter, i.e., that "such matters will not be
the subject of collective bargaining nor come
within the jurisdiction of a board." In this
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regard, referencemust be had LO Section l(1) (CJ,
which clearly indicates that tlic word "board"
covers t.he present board of arbitra:ion which
is established pursuant to this AS.
Obviously, the request of the Union askeus to
determine the way in which the Employer has managed the merit system.which is established.
This, in our opinion, is something we cannot do.
In our view the grievance before us is cleariy
distinguishable. In Dickie, the complaint was directly
challenging the manner in which th'e Employer
administered the merit system - a function declared by
the Act t6 be an exclusive function of management. In
the case before us, the grievers are pursuing a
substantive right under a provision dealing with
employee health and safety, which the parties have
deemed proper to include in the collective agre..ement.
.The Employer does not claim that article 18-l per se is
.void as 'being contrary to section -18(l) of the Act.
Nor can such an argument prevail,' in our view. The
employees have grieved a health and safety hazard under
that provision. The fact that the remedy claimed by
the employees may impinge upon a management right does
not in our .view deprive the Board of jurisdiction to
undertake fan inquiry as to whether the.substantive .
rights of employees' under article 15.1 have been
contravened. We need not decide the issue of the
appropriateness of the remedy requested at this time.
However,
even if the Employer's contention, that any
remedy that the board nay devise. will impinge 01.
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management rights, is valid (and we make.no such fir.ding
here), it may. well be that the union will have to be
content with a mere declaration. However, the question
of appropriate remedy is a matter to be distinguished
from the issue of liability. In pe donneau, 22!/81
(Teplitsky) the Board recognited that article 18.01 was
more than a mere declaration of intention and that it
"imposes an obligation on the Employer". Where th&re is
an obligation there must be a means of enforcing that.
If not, article 15.1 will be rendered meaningless.
In our view the proper test to apply in these
situation5 is to ask whether the gist or substance of
the grievance is one relating to health and safety or to
a function designated as a management right. If the
gist of the grievance is a health and safety issue the
Board has jurisdiction.
From the evidence before us, there can be no doubt
that the employees' .concern throughout has been one
relating to their own safety. Initially they made two
suggestions, the .replacement of ceil doors and th?
posting of 24 hour staff as a remedy. The Employer
implemented the former, but not the latter. Mr. John
Hilderbrandt, the Superintendent of the Niagara
Detention Centre, agreed that the grievor5 were
motivated dy a safeLy concern and had no ulterior
- ‘ ,, --
n!otlves. In light of 011 tr.c cv;ccr;cc, the board 1s
sarisf ied that the sukstance Of
the grievance is a I
safety concern. As such, the management rights
provision in section 18(l) does not Deprive this Board
of jurisdiction to determine if the Empioyees' rights
under article 15.1 were violated.
In summary, the Board concludes' that the gist of
the grievances before it relates to a health and safety
issue and that the possibility that the remedy requested
may infringe upon a management right under section 18(l)
of the Act does not render the grievances inarbitrable.
Accordingly, the Board, has jurisdiction to hear the
merits of the grievances before it.
THE'MERITS
The grievors are all employed- as Correctional
Officers ("C.0.") at the Niagara Detention Centre (NDC).
The NDC is classified as a' maximum security facility.
The facility. consists of a four wing maximum SeCUrity
area with 48 individual cells, a . medium security area
and a segregation area for male inmates.
1 .I
The segregation area consists of 16 segregation
cells. 12 on the second floor and 4 on the ground floor.
The grievances relate specifically to the working
condition in the upper floor. The upper floor
segregation ard:;t had previously been a holding area :c,r
female inmate.s. At some unknown date, that area was .
converted for use as a male segregation area.
An inmate may be placed in segregation if found
guilty of misconduct such as fighting, being in an
unauthorized place or being found in possession of
unauthorized material commonly known as “contraband” or
as a means of "protective custody" where it is deemed
inappropriate to place him in the general inmate
population because of his unstable emotional state,
rebellious attitude or the type of offence for which he
was incarcerated. The segregation*inmates are locked up
in a cell all day except for a 15-20 minute recreation
period each day. They do not enjoy f~acilities for
watching T.V., games and sports or'day room activities.
A segregated inmate has no contact with any other
inmate, except where'.two segregation inmates are placed
in the same cell. This was not an uncommon occurrence.
The union witneti5es testified that the segregation
inmates are generally more aggressive than’other inmates
and that their aggressiveness increases as they spend
time in segregation. .
>
The C.0.s who work in the segregation area come
within the jurisdiction of the maximum area SUperViSiOn.
The C.ti.s assigned to work in segregation cperate In KWO
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mhin 12 hour snifts, 7:Wj a.m. to '/':(ru p.m. and ‘/:GO
p.m. to 7:00' a.m. 'There are also two crbgr overlapping
shifts. The Board heard a substantial amount of evidence
as to the duties of a C.O. posted to segregation. It is
not useful to review that evidence in detail. What is
important to note is that a C.O. posted to a shift in
the segregation unit has other duties in other areas of
the institution. The segregation C.O. makes periodical
checks of the segregation cells but at other times
during the shift is engaged in duties ~away from the'
segregation unit. Anywhere from 20-30 minutes may
elapse betweenchecks of the segregation area. One
union witness testified that if some problem crops up
and a C.O. gets delayed in another area, it may take up
to 45 minutes before he gets anopportunity to check the
segregation area:
Between checks, the inmates are left in their cells
unobserved. During these periods of usually 20-30
minutes no C.O. .-is present in the segregation unit.
This is at the root of the C.0.s concerns. When the
C.O. returns to the area for the periodic check, he or
she is' completely unaware of what the inmates had been
'up to and may be walking in to a dangerous situation.
The Board heard evidence about the various safety
and security measures that are in place in the
segregation area. The main entr'ancz 1s secured by a
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scsur1ty dosr Welch c 3 n oniy b c c.~c~:ed by r7 key or
electronically through the cextrai control desk. A
similar security door is located at the bottom of the
stairs leading up to the upstairs segregation area. The
C.O.'s carry "walkie-talkie" radios which reach a number
of locations, including the central control desk. The
segregation area is equipped with a security alarm
system which can be activated by pressing one of TWO
alarm buttons located in the area. In addition, there
is an "inter-corn" system which reaches a number of
places. Finally, there is a fire detection system
including fire alarms in each individual. cell. The
segregation area also is equipped with fire
extinguishing equipment.
The Board heard evidence relating to a number of
incidents which have occurred in the segregation area.
The most serious of these, and the one that directly led
to the filing of these grievances, occurred on September
27. 1987. On .-that day, two inmates in the upper
segrqgation unit managed to 0p&l their cell door by
repeatedly kicking it, while using the bed
for
leverage. Two': inmates in another -'cell also kicked at
their cell door but was unable to breach the door
although the door was badly bent as a result. When the
C.O. on duty Mr. Bernie Ilarchio, arrived in the
segregation area for his check up, he wiils unaware of the
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lnmiltrs' actlvitres. me proceeded onr tourth or the way
down the hall.in the upper segregation before he notice6
that a cell door was open. His immediate thought was
that the inmates had escaped, but also concerned that
they may be waiting in ambush to attack him. However,
when he looked in the cell he found the inmates still
inside, one lying on the. bed and the other on the
mattress on the floor. .There was no further trouble
arising out of the situation. However: Mr. Marchio
testified that the inmates could have attacked him,
taken the cell keys and released all of the inmates, and
using his key to the security door they could have all
escaped. He testified that his radio, the alarm system
and inter-corn would have been of no assistance because
he would have been immobilised by the inmates. The
Board heard no evidence of any breaches of a cell~door
security other than on September 27, 1981.
In addition, evidence was led relating to the
following "incidents" that occurred in the segregation
area :
- An inmate smashed up a porcelain sink and threw
pieces at the staff, held a pointed-piece in his hands
and made threats. lie was subdued and there were no
.injuries.
- Some 3 or 4 years ago, the fire alarm sounded.
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Tha officeI-s lnvestlgated and dlscc?':ruil CXIL FarI 1rimac:u
had started a fire at the back of the ceil, using 111s
clothing, bed linen and his plastic meai tray. The ‘
inmate was standing naked on his bed. He had tied up
his cell door with sheets and used books to block the
.cell door tracks. As 8 result it took the staff 4 to 5
minutes to open the cell door and extinguish the fire.
- An inmate attempted suicide by hanging, using
his bed sheets to devise "8 rope". The evidence was
that he was saved only because he accidentally tripped
the fire alarm.
- An inmates used wire, which was contained in the
cell's base boards, to device a pointed weapon. There
W8S no evidence.. of any attack being made with this
weapon.
- Finally, evidence was adduced about various
"tricks" that inmates devised while not being observed.
The most frequent is the causing of flooding by blocking
the sink or .toilet. The evidence was that, having
fiooded the area, the inmates watch- and hope the C.O.
slips and falls as he walks in. There was no evidence
of any falls or injuries 8s a result of flooding. The
union witnesses testified that during the time they have
to themselves SOlllt2 inmates induce other "not too
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bright" inmates to play tricks on the C.9. AS one
witness put.it. "playinq tricks on the C.O. is a form of
entertainment for them". When asked to give examples of,
these tricks, the only one the witness could recall was
an incident where an inmate had braided toilet paper
into a "stick" and tripped.him with it as he walked past
the cell. He fell down, but was not hurt.
In'addition to these events that actually occurred,
the grievers who testified expressed concern 8bOUt the
possibility that an inmate may be able to make 8 key Or
devise a weapon by shaping a tooth brush. The
witnesses also testified of their concerns about being
,taken hostage. While agreeing that these events have
not in fact happened in segregation, they felt that the
possibility exists 'as long as the inmates are left
unobserved.
The evidence indicates that the Employer has ~t8ken
corrective action as a result of some of the incidents
that occurred. Subsequent to the-fire incident, matches
were declared.contraband and not allowed in .the cells.
The inmates were required to be"searched for matches
before. being placed in a cell. However, the evidence
is that not infrequently, inmates still manage .to
smuggle matches into their cells.
- ,i -
segregation, metai sinks and toiiets were installed in
the iower segregation !z,ui porcelain sinks and toilets
continue to be in place on the second floor cells.
Similarly, after the baseboard incident, all of the
baseboard containing metal wire was removed.
As noted, the only time an inmate escaped from his
cell was on September 27, 1987. The Superintendent of
the jail, Mr. John Hilderbrandt, testified that itwas
only after that incident that he realized that the cell
doors were constructed out of card board with a sheet
metal covering. In response, two new doors were ordered
and installed to replace the breached door and the door
that was damaged. Until these doors were replaced a
C.O. was posted.in upper segregation on ~a 24 hour basis.
The Superintendent testified that that was done to
alleviate any concern the staff may have had. The
purchase order for the doors was filed in evidence. The
doors 'are described as "heavy duty steel doors" and
specifies that the viewport will -be made out of "112"
plexiglass removable from the front: side only". Mr.
Hilderbrandt testified that the new doors had a steel
frame and a steel plate cover. The locks were dead bold
keyed from.the outside and could only be opened cr
closed from the outside with the key. He admitted that
the door frames and hinges were not replaced and that
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the new doors did not fit the old door frames perfectly.
AS a reszlc certain adjusrments had to be done. Mr.
Hilderbrandt testified that he had the construction
superintendent che,ck the doors af cer instailation and
was assured that they were secure.
After the two new doors were installed, the 24 ho.uir
pcsc, was ,removed. On October 2C, 1987 a meeting of,the
Joicc Empioyee Relations Committee was convened at the
union's request to discuss the concerns of the C.0.s
reiating to the upper floor segregation unit. At this
meeting the union made two demands as being necessary t0
alleviates the staff's concerns: Namely, the replacement
of all. cell doors and the postings of 24 hour staff.
Following the meeting, management had consultations with
the Regionai Office and a decision was made to replace
all cell doors on the second floor segregation. An
order for new steel doors was accordingly made. It was
also decided- that the beds would be relocated at the
back'of the cells so that the, bed cannot be used for
leverage in any attempt to breach the door. These
decisions were implemented in approximately one month.
However, the demant for LB hour staff coverage in
segregation area was not granted and directly led to the
filing of this grievance.
T~he evidence is that the correctional officers had
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demanded fuii time staff coverage 1n t;?e upper
segregation unit even before i 5 e September 27, 1%1
incident. I%- . ._. Hllaerbransr in cross-exs.z;na:loz
testified that in the p'ast he had agreed with
correctionai officers that 24 hour coverage would Se
"ideal". While in his evidence he stated that a 24 hour
post would be 'I an abuse of staff complement", Nr.
Hilderbrandt agreed in cross examination that such a
post wiil enhance the ability to run the institution.
However, he insisted that the present staff complement
was enough to run the institution safely and denied that
the present arrangement exposed correctional officers to
any undue risks.
'. .
The evidence also indicates that in response to.the *
concerns expressed by the staff, at some point prior to
September 27; 1987, ~2. Hilderbrandt considered
providing a 24 hour post in the segregation unit, by
,reorganizing-the existing staff complement, but found
that it was not feasible. Then he made a request for an
additional officer from the Regional office and
attempted to justify such a need. However, we did not
hear exactly what justifications were offered by him.
Tne evidence is that the Superintendent does not have
the authority to unilaterally increase staff complement.
A request must be made through the Regional Director,
and must ultimately be approved by
Management Board of
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Cabinet. Hr. Hilderbrandt testified that to get
apnrcval, he must be able "show a background history and
a serious need". In this case he was unabie to meet
those guidelines. Under repeated cross-examination, Nr.
Eilderbrandt
maintained that the existing staffing in,
the segregation unit was adequate and that there was no
safety or security reasons on which a request for
additional staff could have been justified. He agreed
that he would not normally pursue demands of
correctional officers if he felt that they were
frivolous or w*lLidU; u8eLit. w1Lla;r ;;::c-' :A;- -.---- *kc,.. 5-2 !?.0_20
a request for addition staf.f in response to the demands
for a 24 hour segregation post, he said, "we always like
to enhance staff oomplement so that it will affect other
progralames and procedures”.
.
SUBKISSIONS
Counsel for the union concedes that the job of a
correctional- officer is inherently a hazardous one.
However, he submits that under article 15.1 the Employer
has a duty to minimise an identifiable risk where it is
reasonable to do so. He points to the evidence that the
biinistry's training programme stresses that physical
observation of the inmates is very important in ensuring
security and keeping control of the institution. He
submits that although the union cannot disprove the
evidence that the new steel doors are secure, there is
!, ’ y - 2: - i(
the possibility of inmates
breaching even these doors
He points to two instances of fabrication of weapons,
once with pieces from the smashed porcelain sink and the
other from.the wire from the baseboard. Uniie these
particular sources of danger have been eliminated,
counsel submits that if left unobserved the inmates will
think of new ways of devising weapons. He points Ko the
evidence that despite the banning of _ marches and body
searches it is impossible to CiiWFiYS detect mar&es
hidden by inmates. He submits that a fire set in a celi
is not only a threat to the inmates, but exposes the
staff to danger.
Counsel contends thatwhile disasters perceived by ' .
the staff are unlikely to occur frequentiy, the Board
should recognise that if they do occur the consequences
would be extremely serious. The Board is urged to
compare these disastrous consequences with what it will
take to .prt?yent it, namely the provision of a 24 hour
post in the area. Counsel submits that the fact that a
C.O. has not todate been maimed orkilled should not
prevent a finding that article 15 had been violated. In 1
these circumstances, it is submitted that the 24 hour
post in "a reasonable provision for the safety and
heaith of its employees" within the mzanicg cf article
15.i and the Board.is urged to so find.
1
- 22 -
Counsei for the Employer submits tnai article 15.1
does not obiigate the EZllplOyei
LO guarazcee agalnsr:
every risk. The obligation is oniy to make "reasonable
provision". ‘he points out that given the natl;rf cf the
j.ob of a C.O.. not all risks can be eliminated. EC
points to section 23(l) (c) of the Gccunational Health
and Safety Act, which denies the right to refuse unsafe
work to "a person employed in the operation of a
correctional institution or facility" as a legislative
recognition that exposure to certain risks is inherent
in employment in a correctional institute.
Counsel concedes that a probiem existA' in the
segregatiori unit, but submits that' the rootof the
'probiem was eliminated when the new doors were
installed. Since then, the only "incident" in the
segregation unit was the tripping of an officer with
braided toilet paper. tie points to the many safety
devices and.procedures in place in the segregation unit.
he urges the Board to find in the circumstances that the
employer has acted in a responsible and professional
manner in providing a safe work environment and r.',a:
there has been no violation of article 15.
DETERMINATION
The issue to be determined is clear. By lea.Jing
segregation inmates unobserved and requiring staff to
- 23 -
enter the segregation unit periodically to make checks,
is the Employer failing "to make reasonabie provisions
for the safety and health of its employees during the
hours of their employees"?
k'e heard s&missions as to the nature of the
Enpicyer's obiigation under article If. It was agreeti
that at least as far as correctional officers are
concerned, the obligation does not go sc far as t3
require elimination of ali risks. The phrase
"reasonabie provisions" has been interpreted by the
Board previously. In OPSEU (Policy Grievance1 69/84,
7G/S4 (Samuels) the Board. set out the relevant factsas
follows:
The only inmates with which this .officer will
come in contact during his shift are on their
way 'to the hospital (within the institution),
or on their way perhaps to some oth,er living
area for security purposes, or some other
reason. The back end officer wiil be notified
that there is an inmate who must go to the
hospital, and he will go to the living area,
where the inmate is released by the officer in
the living area, and then the back end officer
will escort the inmate down the stairs and to
the exit from the back end. Similarly, he
will escort the inmate from the entry to the
back end back to the living area, on the
innate's return from the hospital. The
' Union's'concern is that the back end officer
may be assaulted and overpowered by the inmate
while the officer is on single escort. And
this could lead to further serious
consequences once the inmate laid hands on the
keys carried by the officer. The Union
suggests that this dangerous situation should
be remedied by manning the back end module
during the period in question.
-
- 24 -
The Board in dismissing the grievance stated:
The evidence disclosed that this sysrem of
manning rrhe back end during c:he hours of
midnight to 6:GG a.m. has been in Flace for at
,Leasc ;wency years and there has never beer. a
sngli incident. if the back - cffizar is e r. c
concerned about escorting the innate alone,
the officer carries a radio and hi: can ask for
kelp before he collects the imace. in our
view, r;he risk is infinitesinai, given the
tozai experience of the witnesses and'the
number of inmates invoived over tine.
Article 18.1 speaks of reasonable provisions"
iemphasis added) for the safety and health of
the employees. And this is echoed in section
14(2)(g) of the Occupational'Health and Safety
Act, which imposes a duty on an employer to
"take every precaution reasonable in the
circumstances for the protection of a worker"
again emphasis added). There is no obiigation
to guarantee an employee's safety against
every possible risk, no matter.how remote the
possibility that it will occur. The --T,--A.ie- -& ___- e-4. C".bISbLI"S ")L UC .*a-.... xi- t::: , ^-: r3 -ci -"' --*'---- --___
contemplate "reasonable".precaution.
Similar observations were made bY the 6oard in
GPSEU (Union Grievance) (Roberts) (1586) 27 L.A.C. 13d)
233.
Counsel for the union submits that the Samueis
award is distinguishabie because it was based on the
6oard's conclusion that "It is necessary to balance the
safety of the employees against the need for care and
custody of the inmates and the purposes of the
institution." Counsel points out that here there is no
such.balancing required because the full time manning Of
the segregation unit will enhance both employee safety
I “’ 1,~ - 25 -
and the security of the institution. While the BGard
did make the general statement as tG a need f3r
balanci ng of' interest, that could nor have been -,;le
basis of the Board's decision. There the c:r,ion Was
demanding that the back-end moduie be manned when back-
end officer Ss escorting an inmate in or Gut. SUCh
manning would aiso enhance both the security as weii as
the safety of the employees. We do not see the Board's
generai comment about the need for balancing of
interests as affecting its interpretation of articie li
that it does not require elimination, of all risks.
We agree with that interpretation, of the phrase
1. .,~ . . rsaauiirrurs 3ri G>~j;ans". The i,.ssl?e is w++hc.y that
standard has.been met by-the Employer here. A careful
review of the evidence indicates that. the only
circumstances in which the returning correctional
officer can be exposed to any real danger is where an
inmate or inmates have managed to escape from the cell.
Although .no in juries or serious consequences resulted
from the incident on Seprember 27. 1527, things could
have been different if the two inmates chose KO behave
differentiy. If an inmate is at iarge, aii Of the
security device5 available to the officer may not be
sufficient to prevent drastic consequences. however,
the evidence is clear that all of the cell door5 in tT.e
user segregation area have D22rI replaced. ?' ir e
I ,)
-’
i, ’
t.
/
- 26 -
SuperinKendent admitted that until the September 27,
19E7
incident, he Was not aware Of the inferior
construction of the cell doors that were in use at the
K1.22. In contra5 t , the new doors were ordered with
particular attention to
the security aspezc an9 a5 a
. C;;TECL response to the breaching Gf K ii. e old dGCr.
Ehil2 he admitted that "no door is im~regzable" , ;he
evidence is clear that the new ddcrs are far superior
tiian the Gid. They are constructed wiKh steel pla:e,
the viewport is'removable 0~1~ from the outside aad they
cannor: be onened from the inside even if a key was
avaiiable. The chances of an inmate breaking such a
door in our. view is remote. In so finding, we accept
the Superintendent's evidence that he satisfied himself
in consultation with the construction SuperintendenK
that the adjustments thaf were done on the new door5 in
the installation process did not affect their security.
It is the Board's conclusion from all of the
evidence, that as long as the inmates are confined in
Kheir.cells, the chances of an officer being injured is
minimal. The BGard heard evidence that fires are
started in cells quite frequenKly by inmates despiKe Khe
sKrict procedures relating to de:ecKion of rr.iKches.
Yet, there was n3 evidence of one instzzce where an
officer required medical treatmen: or was 1n;urid in anI
Way. This is not surprising consiozring i.>i 2x:',er.s1ve
fire decectaon and extinguishing .procedures and
equipment in place. The porcelain {ink zncidenr was cf
concert to the union. The porcelain sinks have now oeen
repiaced with metai ones. In any event, we ; r 2
satisfied that as long as the offic
devices such as the alarms, radic
there is not a real likelihood tha
in his cell can pose a serious d
In this regard we also note that
order", that two officers must be
door is opened. There is no dou
unobserved will have more opport
tricks to play on the officers.
braided.toilet paper incident are e
are not satisfied that these tricks
to the staff. They are more in the
or inconveniences.
There can be no quarrel
proposition &at physical observat
one of the m0s.t important aspect
orderly conduct. Thus, 24 no",
full-time staff or some other alte:
monitoring centrally througn cam'
However, as the Board has stated be
not impose such a high standard of 8
The duty is to provide "reason,
:er
I ).S
It
lax
t!Y
.bt
,un
Th
xa
E
50
I
rn
er
fo:
l,,
I ab,
I ; uses the security
I and intercom, tnen
an inmate confined
lger to the officer.
lere is a "standing
present when a ceii
that inmates ieft
ity to plan vario;ls
,e fiooding and the
mples. However, we
ose any real danger
ature of annoyances
with the general
_ n or tne inmates 1s
Of assuring their
oraervation through
ate method such as
as. would be ideal.
re, articie 15 does
ty on the empioyer.
le" provisions for
- 28 -
sefety . T?.is
duty iS sim1ls.r to -,hZC in sectior,
IC(ii (gr c:f 'L h e Occcnti cnzl Heclth a.r.2 safery AC:,
k‘ a 1 c i-. requires an empioj-er Cc "t;ke every precauticri
reascnabie Iii zhe circumstances Ear the E;rccecc:on zf a
worker . "
Ii-. all of ;jle circcmstances, we concl-<de tha: <i-ii
emgioyer, as of the time ~of the hesrlzg, hd T.;it Wltii
its obligatior, under article 15. X:cordingly, tbesa
,-rievances are hereby dismisseci.
Dated in Hamiiton, Ontario this 2ist day Of October,
li'imal V. Dissanayake
P. Klym
Member
D. Wallace
Member
-.
ADDENDUW
I concur in the final determination in this case but I feel a
few additional comments are required.
Although the Correctional Officer job is inherently a hazardous
one and it may not be possible to, eliminate certain risks, the
people performing this job have.a right to expect that, where
possible, steps are taken to reduce safety hazards and risks,
as in any other occupation.
Uy concern in this- case is that the approach taken by the
Ministry seems to be based -on a standard that there must be an
actual demonstrated incident or event which created an
obviously unsafe and hazardous condition before remedial steps
are taken.
The evidence in this case showed the following:
The doors were checked and replaced .&~&SK two had been
breached.
The beds were moved m they had been used for
leverage in breaching doors.
The porcelain sinks on the first floor were replaced
with metal ones m an inmate had broken his and
threatened staff with pointed parts.
Baseboards containing metal were removed &&QZ an
inmate had used this wire to make a weapon.
Matches were declared contraband and not allowed in
cells and a match search instituted w an inmate had
started a fire in his cell.
Further, testimony. from an employer's witness was that the
Ministry demanded evidence of .actual hazardous occurences
before they would authorize additional staff.
A proper approach to health and -safety problems involves
anticipation of pote&&J hazards and taking reasonable steps
to correct them. Indeed this is the obligation under the
Occupational Health and Safety Act and Article 18 of the
Collective Agreement.
I submit that an apparent approach to health and safety
problems that tends to demand actual cccurences of hazardous events before corrective action is taken is extremely dangerous
and not one that can be condoned.
In this case.1 am puzzled why one clearly identified potential
hazard on the second floor has not been corrected. I refer to
the fact that the porcelain sinks had not been replaced by
metal ones on the second floor but only in the first floor
segregation cells. No satisfactory explanation waa given to
the Board as to why this has not been done. I would suggest to
the parties that it would be appropriate for them to discuss
whether this matter deserves their attention and action.
Peter Klym