HomeMy WebLinkAbout1989-1246.Haynes.90-09-06 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L~ONTARIO
GRIEYANCE COMMISSION DE
SETTLEMENT REG/EMENT
BOARD DES GRIEFS
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1246/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Haynes)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
- and -
B. Kirkwood Vice-Chairperson
J. Carruthers Member
I. J. Cowan Member
FOR THE B. Rutherford
GRIEVOK Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER Staff Relations & Compensation
Human Resources Management
Ministry ef Correctional Services
HF_~%RING: February 15, 1990
May 7, 1990
Page
DECISION
The grievor alleges that the Ministry violated
article 18.1 of the collective agreement by not making
reasonable provisions for her safety and health by not
requiring every inmate at the Elgin Middlesex Detention
Centre, to be showered, wheneger admitted, contrary to the
Ministry of Correctional Services Act, Regulation 649,
Section 7.
The inmates are categorized for the purposes of
admission into one of three categories (1) newly admits
(those who are being admitted for the first time for a
particular offence); (2) in transits (those inmates who have
been processed ~hrough the initial admission procedures and
who are being brought in and transferred from other
institutions and who are usually brought to the Elgin
Middlesex Detention Centre on a temporary basis); and (3)
intermittence (those inmates who have been processed through
the original admissions procedures but who have been allowed
to complete their sentence on the weekends thereby allowing
them to continue to work during the week). The intermittence
usually work during the week and are admitted Friday evenings
and leave the institution on Monday morning.
On July 24, 1989, Chris Cooney, a Correctional
Officer spoke tO the grievor as the grievor was a union
steward, and complained that no in transit inmates were being
showered. At the time that the grievance was filed the
grievor was a Correctional Officer 3, red circled to a
Correctional Officer 2 working in the female segregated unit.
The grievor attended Unit 1 where Officer Cooney was working
and saw two inmates in street clothes with dry hair.
-~ Page 3
/.
She attempted to resolve the issue by speaking to
the Admitting and Discharge Supervisor John McCoubrey.
Officer McCoubrey recalled that there was some discussion
over the incident although he had no recollection of the
de%ails.
The grievor then brought the matter to the
attention of Lieutenant Runciman. She showed him Regulation
649, Section 9 of the Ministry of Correctional Services Act.
As a result Qf their discussion, Lieutenant Runciman ordered
Sargeant Lockwood to ensure that all inmates upon admission
whether for the purposes of in transit custody, intermittent
custody or permanent custody were to be showered.
On July 28, 1989, the grievor became aware that not
all admitting and discharge officers' were instructed to have
all inmates shower on admission,, and she submitted an
occurrence report outlining the situation.
On July 28, 1989, the Superintendent, Mr. Starkie
issued a ,ew standing order, amending the former orders, by
requiring only "newly admitted' inmates to shower. Mr.
Starkie claimed that he never saw the grievor's report, but
issued the new order as the institution was under work-to
rule.
On August 12, 1989 the grievor filed t~he grievance
that 'is before us. '~
The Union's counsel in her opening address
submitted that the g~ievance was not intended to be construed
as a group grievance, but in her closing argument, she
submitted that the Board could treat it as a union grievance.
Page 4
It was the Ministry's position that the grievance
was a policy grievance disguised as an individual grievance
and submitted that the board has jurisdiction to deal with
the grievance only as an individual grievance.
The first issue which we must deal' with is the
categorization of the grievance.
The grievance stated:
I grieve that management is violating Art. 18.! by
not reasonably providing for my health and safety
contrary to the Regulations 649 Sect.9 Management
is not ensuring each and every admitted inmate is
bathed.
I desire immediate compliance with Reg. 649 s. 9. I
desire $4.00 for each hour worked commencing July
28, 1989 for added risk,and injury to my health and
safety.
The monetary claim was withdrawn on May 7, 1990.
The grievance was signed by the grievor, Cindy
Haynes. Officer Cooney did not file a grievance and did not
join in this grievance.
The grievor testified that the failure to have all
inmates shower on admission resulted in some inmates being
required to work in the kitchen, who had tremendous odors and
who, by virtue of their occupations as labourers, would have
dirty fingernails and greasy hands. She had complained to
the staff about this situation, but she did not discuss this
matter with her supervisor.
The nature of the complaint, is one which would
affect not only the grievor's health and safety, but would
affect the health and safety of the inmates and other staff
members who ate the food prepared by the inmates. However,
the grievor did not bring this complaint to the Board by
Page 5
means of a union or.policy grievance, and she also testified
that she chose not to bring tkis mat%er before
Occupational and Health & Safety Committee, but to proceed on
the grievance on her own behalf.
In Re Canadian BrQadcastlng Corp. and Nation~l
Association of Broadcast Employees and Technicians (1973) 4
L.A.C. (2d) 263 (Shime), Mr. Shime speaks of four types of
grievances: individual, group, policy and hybrid and states
at p. 266:
(a) individual employee grievances were the
subject matter of the grievance in personal to
the employee;
(b) group grievances were a number of employees
with individual grievances join together in
filing grievances. This type of grievance'is
really an accumulation of individual
grievances;
(c) union or policy grievances where .the subject-
matter of the grievance is of general interest
and where individual employees may or may not
be affected at the time the grievance is
filed;
{d) there is a hybrid type of grievance which is a
combination' of the policy grievance and the
individual grievance. In this type of
situation, although one individual may be
affected, he may be affected in a way that is
of concern to all members of the bargaining
units. Thus, the individual may grieve on the
basis of how he is particularly affected while
the union may also grieve citing the
individual case as an example of how certain
conduct may affect the members of the
bargaining unit.
In reviewing the form of the grievance and after
listening to the evidence, it is clear that the grievance
before us is an individual grievance.
The collective agreement does not define the four
types of grievances, but it dbes set out separate procedures
for individual grievances and for union grievances. Articles
Page 6
27.2.1 to 27.6.4 of the collective agreemen% set ou~ the
procedure for individual grievances and article 27.12.1 to
27.12.3 for union grievances.
we find, as with other panels of ~he Grievance
Settlement Board that individual and union grievances, as
provided in the collective agreement are mutually exclusive.
OPS~U(S. Anderson) and The Crown :in ~ght of Ont~riQ
(I..T..R.O.) G.S.B. #1028/86 (M.V. Watters), QPSEU Fox and The
Crow~ in Right of Ontario (L.C.B.O. G.S.B. 572/82(Draper),
OPSEUCJ.R.T. Katchay) and The Crown in Right of Ontario
(M.C.S.) G.S.B. #354/83 (J.W.Samuels).
In Fox (supra), the Board recognized t'he
limitations of an individual grievance. It recognized that a
declaration may be given on an individual grievance, but tha~
the declaration would not be of general application but would
be restricted to the particular grievor and the issues raised
by the grievance. The Board did not allow the grievor in
that case to achieve a result as if it were a policy or a
group grievance, by means of an individual grievance.
Similarly, Arbitrator Samuels recognized in the
J.R.T. Katch~y (supra) decision, that there has been a
tendency to broaden the union's right to file policy
grievances such as in Re CorporatSon of BoroLLgh Qf ~Kobicoke
and ~tob~coke Civic ~nlplQyees' Loc~] UniQD ~185 (1980) 28
L.A.C. (2d) 1 (Shime), but there has not been any similar
tendency to enlarge individual grievances.
Our jurisdiction is framed by the grievance. The
benefit of the arbitration procedure is that boards usually
will not take an overly technical approach to the
construction of the grievance, as the purpose of the
grievance is to set out the issue and to not subject it to a
technical analysis. However, we cannot treat a grievance of
Page 7
one person on the basis that there .are many others in suppor5
of that position when the grievance has not set out in that
manner. Therefore, as this ·grievance is an individual
grievance, it cannot be treated as a policy or union
grievance.
As an individual grievance, therefore, the onus is
upon the Union to show that tke grievor's personal health and
safety was affected by the Ministry's failure to follow
procedures.
Regulation 649 of the Ministry of Correctional
Services Act states:
9.0 When a person is admitted into custody at an
institution the person becomes an inmate of
the institution and the Superintendent shall
insure that each inmate is searched, bathed
and clothed in the proper manner.
Therefore the regulation requires every inmate to
be showered whenever that inmate is admitted into custody.
There are no exceptions made for the intermittent inmate nor
for the in transit inmate.
Although mention was made of in transit admissions
not being showered on July 28, 1989, the evidence related
more particularly to the admission procedures for
intermittent admissions.
On the evidence that was presented to this board,
the in transit inmates leave and re-enter the institution and
therefore are re-admitted into custody at the institution on
their return. By virtue of leaving the institution and
.returning to the inmate's workplace the intermittent inmate
leaves the custody of the institution and is again admitted
to the custody of ~the institution on his return. The
Page 8
Ministry's standing orders to require these inmates to be
searched upon entry is consistent with the concept that these
inmates are admitted each time that they re-enter the
institution.
The standing orders to July 28, -1989 were in
compliance with the regulation. The new standing order which
was issued on July 28, 1989 requiring only new admissions to
be showered was contrary to this regulation. Therefore, the
Ministry breached regulation 649 section 9 when it failed to
ensure that the in transits were showered upon re-entry to
the institution.
However, our jurisdiction is not to enforce the
regulations, but to ensure that the terms of the collective
agreement are not violated. Therefore the grievor has the
onus to prove not only the breach of the regulation, but also
that the breach also affected her health and safety.
The grievor testified, and the Ministry
acknowledged, that intermittents usually arrive Friday after
dinner and some may arrive as late as 10:00 p.m. They are
not showered in the admissions and discharge area, but are
sent to their work units, where the showers are turned on
from 6:00 p.m. to 9:00 p.m. The inmates have the opportunity
to shower should they wish to, but they are not required to
do so.
The grievor was aware that that the practice of
· intermittents not showering upon re-entry to the institution,
had been carried on for three years, and there was no
evidence that this breach of the regulation affected her
health and safety at any time.
The grievor testified that sometimes intermittents
were called to do kitchen duty for the 5:30 a.m. shift. If
Page 9
the inmates had arrived late, the inmate would not have had
an opportunity to shower. Although they are given ~clean
clothes, but they are not required to shower. The grievor
claimed that as many of the inmates are labourers, they
frequently return to the Centre with tremendous odours which
she finds nauseating, but more importantly, they 'work with
greasy hands and fingernails. She claimed tha~ these inmates
who are hot required to shower, exposed her to a health and
safety risk.
Under the Ministry Standards and Procedures Section
F-2, Page 21, the general health care policies do not allow
persons with poor personal hygiene to work in the kitchen and
it asserts that all food handlers must be clean. The
correctional 'officers or the kitchen staff may select inmates
required for kitchen duty and therefore the staff has the
ability and obligation to choose clean inmates or to ensure
that the inmates are clean before performing their work.
Accordingly, it is upon those who are responsible for the
kitchen being the Health Care staff to ensure that these
standards and procedures are met.
Although it is a matter of common sense that
cleanliness in the. kitchen will minimize any health risks,
there was no evidence that that any staff member failed to
comply with this standing order and therefore breached these
policies. The grievor, herself, testified that she did not
know what the kitchen ~taff did when screening the inmates.
We only had the suggestion that there was a likelihood Of
inmates with greasy hands working in the kitchen, as many of
the inmates were labourers and would not have sufficient time
to clean up. before going on kitchen duty.
Nor was there any evidence that the in transit
inmates which the grievor met with Officer Cooney were
Page 10
requir?~ to work in the kitchen nor did they work in the
k it chen.
A!Chough showers are available from 6:00 to 9:00
o'clock each night for the intermittent inmate, if the inmate
were assigned to a work unit such as the kitchen, the work
units have showers available for those inmates at all times.
Any correctional officer can direct an inmate to take a
shower and can give disciplinary action if the inmate fails
to follow the order. Therefore, even if we had found that
the grievor or Mr. Cooney had seen that an inmate was not
showered it was within Mr. Cooney's and the grievor's
authority to order that inmate to be showered. Therefore, we
cannot find that the Ministry violated the collective
agreement, when it was within the grievor's power to ensure
that there was no health risk.
There was a suggestion that the supervisor could
undermine the correctional officer's decision by overturning
the discipline; however there was no evidence to indicate
that this had occurred.
Our jurisdiction arises from article 18(1) and we
find that the Union did not discharge the onus upon it %o
show that the grievor was affected by any breach in procedure
by the Ministry. Therefore, this grievance is dismissed.
The Ministry acknowledged in its opening statement,
that it was prepared to examine the practice and to ensure
-that the inmates were showered in a more timely fashion, we
encouraged the parties to resolve the matter between
themselves 'in the intervening days between hearings.
Unfortunately, they failed to do so.
It was conceded by the Union's counsel that it is
not within the Board's jurisdiction to enforce the
Page 11
Regulations. We are powerless, .as there was insufficient
evidence to show that there was a health and safety risk to
the grievor. We hope that the parties will direct themselves
to the the Occupa'tional Health and Safety Com~nittee where
each side has the opportunity to .consider the problem and
canvass alternative methods of resolution.
Dated at Toronto, this 6th day of SeDtemb~r!990.
'B.A. Kirkwood, Vicechair~erson
J. Carruthers, Member
I. Cowan, Member