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HomeMy WebLinkAbout1988-0350.Rowe.89-09-18~'~/~ ONTARIO EMPL OY~-,.~ DE LA ~OURONNE CROWN EMP L 0 YE~S DE L 'ONTA RiO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WE~T, TOI~ONTO, ONTARIO, MSG IZ$ - sUiTE 2100 TELEPHONE/T~'L~PHONE 180, RUE DUNDAS QUEST, TORONTO, '(ONTARIO) MSG IZ8 - BuI~EAU 2100 (4t6) 598-0688 350/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVA/~CE SETTLEMENT BOARD Between: OPSEU (Rowe) Grievor - and - The Crown in Right of Ontario {Ministry of Correctional Services) Employer Before: J.W. Samuels Vice-Chairperson P. Klym Member D. Walkinshaw Member For the Grievor: M. Bevan Grievance Officer Ontario Public Service Employees Union For the Employer: J. Benedict Manager Staff Relations and Compensation Ministry of Correctional Services Hearings: February 27, 1989 July 5, 6, 1989 August 2, 1989 DECISION 2 The griever is an experienced correctional officer, employed at the Elgin-Middlesex Detention Centre since January 1986. He has worked almost exclusively in the adult unit of the Centre. This case concerns the griever's experience in the young offender unit, which was established in April 1985. In the year and one-half up to March 24, 1988, the griever worked on six occasions as an officer in the young offender unit. He has no special training for service in this unit. In the young offender unit, during the day, he would take his turn as the "inside officer", locked in the dayroom with up to sixteen to eighteen young offenders. He might be "inside" for several hours during a shift. The griever is concerned because, while an officer is inside, there is not always another officer outside at the grill watching over the well-being of the inside officer. This type of back-up is always provided in the adult unit when an officer is in the dayroom with inmates. In his grievance, the griever alleges that his health and safety were jeopardized by the assignment to inside officer without proper back-up in the young offender unit, which is a violation of Article 18 of the collective agreement. And the griever complains that he has received no training relating to this specialized unit. He requests that proper back-up be provided for all officers at ail times and that training and instruction be provided for g!!I1 staff being posted to this area. The young offender unit at the Centre has a capacity of 32 inmates (though sometimes there are more), all aged sixteen or seventeen. The males are lodged in one of two areas, known as B7 or B11. The females are kept in a nearby dormitory. However, if a young offender behaves inappropriately on admission, or while in custody, he or she may be placed in a segregation cell. Our concern is with B7 and B 11. 3 B7 and Bll are similarly composed triangular areas, with six cells along one wall, two cells and another room along a second wall, some shelves and an alcove with a television set along the third wall, and some tables and benches fixed to the floor in the central portion of the space. The central area is the "dayroom". Between B7 and B 11 there is a locked common room. Off B7, there is a locked teacher's room; and off B 11, there is a locked kitchen. There are washrooms and showers adjacent to each dayroom. The main entries to B7 and B11 are from a hallway. The entry consists of a three-sided grill which extends into the dayroom, so that an officer can come into the grill from the hall and can observe all parts of the inside unit. There are also solid steel doors at the entries, which can be closed across the opening into the grill from the hallway, but these doors are rarely closed. If one is closed, generally there will be an officer stationed outside to check on the dayroom. But it may happen that the door is closed without an officer immediately outside. The evidence at our he~iring focused on two shifts the grievor worked in the young offender unit--the day shifts on March 18 and 24, 1988. On both occasions, he talked with management before the shift commenced and made it clear that he was very concerned about serving as inside officer without another officer at the grill at all times. On March .18, the grievor was inside officer for roughly one hour and thirty-five minutes, which is the total of five periods in the dayroom, four of which were brief (five to ten minutes) and one of which lasted just over an hour. He was alone in the dayroom for roughly one hour to one hour and fifteen minutes. On March 24, he was inside officer for roughly four hours. We heard detailed evidence about the grievor's activities while inside on March 18, and some evidence concerning the situation on March 24. 4 But these shifts appear to have been ordinary shifts, so we will speak generally about what happens on a day shift. There is no need to recount the minutae of the grievor's time on March 18. On the day shift, there are almost always five officers in the young offender unit. The officers will rotate jobs during the shift. Generally, there is one officer in each dayroom, spending his time with the inmates who are not out on projects, or at school, or somewhere else outside the dayroom. One officer acts as the "hall officer". One officer is a "float". And another officer is primarily responsible for admitting and discharge. The hall officer checks on the dayroom on a random basis throughout the shift and records these checks in the log book which he keeps. He removes young offenders who leave the dayroom for visits, work programs, or other reasons. He does security checks. He carries a radio and keys to the dayroom grill. The float officer assists the inside officer in the dayroom when waking the young offenders in the morning. He supervises the young offenders cleaning the hall. He helps in admitting and discharge. He assists the inside officer as needed, for example in providing meals to the young offenders. He carries the key to the common room entrance from the hall. He supervises the young offenders who are in the kitchen ~preparing the evening snacks. The admissions and discharge officer handles admission and discharge functions--new inmates entering the unit, young offenders who are discharged, and inmates going out for brief periods to court or elsewhere. This officer assists the inside officer with wake-up and meals, and otherwise as needed. The three officers who are not "inside", and others who may be in the area (for example, social worker, psychologist, shift supervisor, unit manager), will che~k on the inside officers from time to time. 5 If the inside officer needed help, and no other officer was right there at the grill, the inside officer could call for help. The evidence of the grievor and management witnesses differed on the acoustics of the unit, and on whether other officers would be able to hear the call for help. We accept the opinions of the management witnesses who said that the call would be heard. These witnesses have been in the hall and in the duty office which is nearby, and they say that it is easy to discern sounds from B7 and B ii. The construction is all concrete. There is little sound absorption. - Officers answering a call for help might radio for more assistance (the hall officer carries a radio), or telephone for help from one of a number of phones outside the dayrooms, or push one of the many emergency buttons located' about the young offender unit. This would bring assistance from throughout the Centre. If restraint equipment is needed, it is available in the duty office in the young offender unit. As we have said, in the adult unit of the Centre, when an officer is inside the dayroom with inmates, there is always a back-up officer right at the grill watching his mate. The back-up officer cannot leave to answer a phone or even if an alarm sounds. He must remain at the grill until his mate is out of the dayroom. Officers are inside with adult inmates much less frequently than occurs in the young offender unit, because it is not part of the care and custody of adults to have an officer in the dayroom throughout the day, as is the case in the young offender unit. But, in the adult unit, whenever an officer is inside, there's another officer watching from the grill. The young offenders may well have committed the same crimes as a like population of adults. And the young offenders may be just as big and strong as a like population of adults. The unit is home for young offenders serving sentences and for those on remand awaiting trial. 6 The correctional officers in the young offender unit conduct daily casual searches for contraband, and regular random full searches (including a strip search of the inmates). From January 1, 1988 to July 6, 1989, there were 89 strip searches. During this period, all of the searches. have uncovered eight instances of contraband, none of which could be considered a useful weapon. During the same time period, in the adult unit, there were 546 strip searches. All of the searches in the adult unit yielded 28 instances of contraband. We did not hear exactly what was found. The grievor says that he is equally at risk in the presence of adults or young offenders. If an officer who is inside with adult inmates is watched constantly by another officer outside, the same should prevail when an officer is inside with young offenders. In our view, on its face, this argument makes very good sense. However, the Ministry argues that young offenders must be treated differently from adult inmates. The primary reason for this is that the philosophy underlying the incarceration of young offenders is different from the basis of the imprisonment of adults. In the case of adults, the correctional system is intended to provide care and custody. In the case of young offenders, pursuant to the Federal Young Offenders Act, the correctional system is to provide, care, custody and guidance and assistance commensurate with the identified needs of the young offenders. For young offenders, the correctional officers have more than a security function--they must build a relationship which helps in the rehabilitation of the young offenders. The Ministry's philosophy is set out in the Operational Policy and Procedures for young offenders, a copy of which is appended to this award. Note particularly section 3(1)(c) of the Act, which says that 7 young persons who commit offences require supervision, discipline and control, but, because of their state of dependency and level of development and maturity, they also have special' needs and require guidance and assistance. (emphasis added) This requirement of guidance and assistance is translated into the Ministry's "fundamental principles", which read, inter alia: · Services are provided in a positive climate to engender positive personal and social adjustment by young offenders through ongoing stiff training and development (emphasis added) · The least interference possible is exerted upon young offenders to provide them with service and/or assistance. In "The Mission of the Ministry", we find that The focus of the Ministry is habilitative, and where appropriate, rehabilitative. The Ministry attempts to improve the ability or capability of young offenders to function in an acceptable fashion within society. In order to achieve this legislative requirement for guidance and assistance to young offenders, the Ministry uses a "case management" approach to young offenders. An essential part of this approach is the need for the officers to get to know the young offenders, to learn how they tick, so that the officers can play a substantial part in bringing the young offenders around to socially acceptable behaviour. This relationship between the officers and the young offenders is established largely by the presence of the officers in the dayroom on an on- going basis, to talk with the young offenders, to play games with them, to answer their questions, to counsel them. We heard from Ms. B. Busigin, now the Unit Manager of the young offender unit at the Elgin-Middlesex Detention Centre, and a woman with 8 much experience and education in the field. She holds a Bachelors of Arts in Psychology with a concentration in criminology, and a Masters of Arts in Criminology. She has been a probation and after-care officer for both juveniles and adults. In her five and one-half years with the Ministry, she has been a Classification Counsellor, Assistant Superintendent, and Senior Assistant Superintendent of Corrections. We were very impressed with her credentials and her testimony. Ms. Busigin is of the view that the effort to build the relationship with young offenders would be seriously impaired if, while the inside officer was with the young offenders, there was another officer outside at the grill at all times. This was also the opinion of Mr. C. Mulder, who has over 21 years of experience in corrections, and was the Unit Manager of this young offender unit in 1988 at the time of the grievance. He too impressed us with his testimony. Furthermore, these two witnesses were of the view that, if the officer in the young offender unit is doing the job properly, there is less danger inside with young offenders than with adults. Mr. Mulder said that a correctional officer can dete~t what's going on with a young offender more easily than with an adult inmate. Mr. Mulder has no knowledge of an attack on an inside officer in the young offender unit. We accept their opinions. However, in our view, the critical element in building the proper relationship with the young offenders is the ability of the officer to handle the assignment in the dayroom. This ability comes in part from specialized training which is provided to the staff who work regularly in the unit. It also comes from the personal characteristics of some officers. They have what it takes. 9 Not all officers can do the inside assignment properly or well. Ms. Busigin acknowledged that a person can be a very good correctional officer working with adults, but may .be very poor at building the proper relationship with young offenders. She said .that "adult work is different from young offender work". At Elgin-Middlesex Detention Centre, to staff the young offender unit, management seldom draws on the correctional officers who work the adult unit. There is a clear effort to select an officer who is suitable for the special work in the young offender unit. In our view, though help is nearby, when an officer is inside B7 or B 11 with the young offenders,-his safety depends in a significant way on his ability to maintain the proper relationship with the young offenders. If the officer cannot maintain this relationship, he may be at risk unless there is another officer at the grill at all times. Without the proper relationship, the inside officer is in no different situation with young offenders than he would be if he was inside with adult inmates. And when he's inside with adult inmates, there is always another officer right there at the grill. Article 18.1 of the collective agreement provides that "The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment". This provision cannot be compromised by the requirement for guidance and assistance to young offenders established by the Young Offenders Act. The Act imposes a certain standard of service to be provided by the Ministry. The Ministry must provide this service while, at the same time, living up to its obligations under the collective agreement. This Board has had the opportunity on several occasions to comment on the meaning and content of Article 18.1, and in particular within the context of correctional facilities. In Union, 69 and 70/84 (Samuels), the Board emphasized that the collective agreement requires only reasonable l0 , precautions. "There is no obligation to guarantee an employee's safety against every possible risk, no matter how remote the possibility that it will occur" (at the bottom of page 6 to the top of page 7). This approach was followed in Union, 335/85 (Roberts), and Brlek, 1466/87 et al .... (Dissanayake). A correctional officer's job is inherently less safe than that of a secretary in an office. But the Ministry has introduced many safety precautions to reduce the likelihood of injury to the officers. In the young offender unit at Elgin-Middlesex Detention Centre, there are people nearby who check on the inside officer; there are phones and emergency buttons in the hail; young offenders who have proven to be a problem are placed in segregated cells; the officers have ready access to information about the young offenders in the un'it; cells are searched regularly to reduce the oPportunity of concealing weapons. However, in our view, in this case, given that · the grievor had not had any special training for service in the young offender unit, · the grievor had very little experience in the unit and as an inside officer, and · the grievor had made known to management, his serious apprehension about serving as inside officer without another officer at the grill at all times (thus demonstrating that he was not the person to work on the kind of relationship with young " offenders which is the hallmark of the Ministry's program for these inmates), the obligation in Article 18.1 translates into a requirement that, when the grievor was assigned to the young offender unit in March 1988, he should not have been placed inside the dayroom without another officer at the grill at all times. 11 What is the appropriate remedy in this case? Given that the shifts went off without a hitch, we will confine our remedy to the following order. In the future, if the grievor is assigned to the young offender unit, and he has not had the special training for service in the unit, he should not be placed inside the dayroom without another officer at the grill at ali times. Done at London, Ontario, this 18th day of September ,1989. -~$amt~elsI, Vice-Chairpe~$-o.I p. Kly~ber~~ D. Walkinshaw,t;Member ~