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HomeMy WebLinkAbout1990-1367.Watts & King.91-04-12 rr \ -:.... ~ '~~:::'<- ONTARIO EMPLOYES DELA COURONNE CROWN EMPLOYEES DE L'ONTARIO .. 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONEE1TÉLEPHONEE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSJMflE/TELECOPlEE : (416) 326- 1396 1367/90,1368/90 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Watts/King) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: W. Kaplan Vice-Chairperson T. Browes-Bugden Member D. Montrose Member FOR THE K. Whitaker GRIEVOR -Counsel Ryder, Whitaker, Wright & Chapman Barrister & Solicitors FOR THE J. Brooks EMPLOYER Counsel Genest, Murray Barristers & Solicitors " HEARING De·cember 14, 1990 February 11, 14, 1991 March 14, 1991 ~ , 2 Introduction Two grievances were brought before the Board. By a grievance dated June 15, 1990 R. Watts, a Correctional Officer 2 at the Niagara Detention centre, grieves that his "health and safety is being put in unreasonable danger. . . . II Thü remedy requested is that the employer install grill work to separate the grievor from the inmates housed in the Minimum SeGuri ty part of the Centre. The second grievance was filed by Kevin King, who is also a correctional Officer 2 at the Niagara Detention Centre. Mr. King grieves that his health is safety is being jeopardized by the employer requiring him to perform dangerl)us and hazardous work assignments without making provision for his safety. Mr. King requested the same remedy as Mr. Watts, and also asked that the employer suspend certain rounds until this remedy was put into effect. A t the commencement of the hearing counsel advised the Board that if the Board found a violation of the health and safety provisions of the Collective Agreement, it should so declare but reserve on the remedy requested in order to provide the parties with an opportunity to come to their own agreement. Three days of evidence were heard in Toronto, following which, at the invitation of both parties, the Board "took a view" of the institution after "lights out" in Niagara Falls. It is useful to set out the relevant provision of the Collective . Agreement: 18.1 The Employer shall continue to make ¡ -, ·~ I ,. 3 reasonable provisions for the safety and heal th of its employees during the hours of their employment. 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, Both Mr. Watts and Mr. King work in the Minimum Security area of the Niagara Detention Centre. The Minimum Security area is composed of six dormi tor ies , A, B, C, D, E, and F. These s,ix dormitories run off of a central corridor; there are three on each side. Both grievances relate to the requirement, about which more will be said latet, that Correctional Officers working the night shift (7:00 a.m. to 7:00 p.m.) enter each dormitory at least once per hour beginning around midnight, walk to the end of each dormitory and punch a watchclock and then return to the corridor. The lights in each of the dormitories are turned out between 11:00 p.m. and 6:30 a.m. The substance of the union case is that this practice breaches Article 18 of the Collective Agreement, for to require correctional . Officers to walk all the way down to the end of each dormitory given the lighting, the limited availability of back-up assistance, the classification of the inmates, namely th~ offenses for which they are incarcerated, and the physical structure of the facilities, that is to say, their design and the presence of furniture, etc., is to jeopardize the grievors' health and safety. , ~ 4 The employer, on the other hand, takes the position that these security checks have been carried out for a substantial period of time. A Standing Order dated May 1987 requires officers assigned to the Minimum area to enter each dormitory and perform a security check twice per night shift. All that has changed, according to the employer, is the frequency of the chec:ics. Some background to this dispute is in order. In brief, prior to October 1989 Correctional Officers entered each dormitory once or twice a night after lights out. The practice was for one of the Correctional Officers on duty to enter the dormitory while the other stood in the corridor at the d90r observing the first officer. :In Octobl:1r 1989 three inmates succeeded in escaping from dormitory "C". As a result of this escape there was an investigation and review of security procedures, followed in January 1.990 by the installation of new windows and watchclocks in the dormitories, as well as an increase in frequency of the required dormitory pat:::-ols. I Between January and June Correctional Officers were required to enter and patrol the dormitories" two or three times a night. Then the employer issued a memorandum ~nitially requiring dormitory patrols to take place two times per hour; following an ERe meeting this was reduced to one time per hour, and it is this requirement which is at the heart of the instant grievance. The increase in dormitory checks is said to violate Article 18.1 of the Collective c I ~ " S Agreement. The method of conducting the patrols remained as in the past. The watchclocks verify, of course, that the patrols actually take place. There was some issue as to the timeliness of the two grievances in that they were both dated June 15, 1990, while the memorandum requiring checks every thirty minutes was dated June 18, 1990 and the memorandum requiring checks every hour after lights out was dated June 28, 1990. In this sense the two grievances could be said to be anticipatory. No timeliness objection was, however, made. The employer's position is that all that has changed is the· frequency of a long-performed task and that this is a workload grievance. wearing a health and safety disguise. Moreover, counsel I for the employer took the position that all reasonable health and I safety precautions have been and are being taken. . . It is worth observing, at the outset, that the union and the employer presented in evidence quite different descriptions of the working conditions at issue in this case. The Evidence Mr. Watts testified first and he described in some detail the facilities at the Niagara Detention Centre. Mr. Watts has been a correctional Officer since November 1975 and has worked at the - " . 6 Niagara Detention Centre all of that tim,= . Mr. Watts testified that each of the six dormitories was originally set up for 12 inmates but the numbers have increased over time to the point where each now houses approximately 16 to 20 inmates. Most of the inmates are on remands, awaiting sentence or trial or are serving terms of one day to three years. Those inmates awaiting sentence or trial are charged with a wide variety of offenses, from minor offenses such as break and enter, to more serious offenses such as attempted murder. In general, anywhe~e from 60 to 115 inmates are housed in the Minimum Area. As already noted, Mr. Watts testified that each of the dormitories runs off of a central corridor. The top portion of the wall between the dormitories and the corridor is made of plexiglass, .permi tting Correctional Officers to observe inside. There is a common area immediately adjacent to the corridor, followed by the dormitory containing the beds. 'I'he common area holds tables, but . There are also ping pong some tables have been replaced by beds. tables and a shelving unit holding a television. All the dormitories are similar, with any variations in configuration being minor. There is also a washroom running off the common area, and inmates have unrestricted access, day and night, to this facility. Correctional Officers can see inside the washroom through the plexiglass, but, Mr. Watts testified, they cannot see inside the cubicles, which have doors. There is a distance of approximately sixty feet from the entrance to each dormi.tory to the watchclock . l - " ";; 7 positioned at the end. The permanent beds, 16 in each dorrnítory, are made of steel and are bolted to the floor. There is approximately 3 to 4 feet between each bed. When the inmate . population expands mattresses are· put on the floor. Lighting in the dormitories and the dayroom is primarily fluorescent. The long fluorescent bulbs are covered by steel grates. These lights are turned off at night, but some incandescent lights, periodically placed, remain on. The washroom ..lights are also kept on. The lights that are kept on illuminate the exit sign and they are generally blue or green in colour. The number of bulbs actually burning depends on whether or not the iñmates have succeeded in knocking them out. In particular, those inmates whose beds are under one of the nightlights have been known to try to knock them out because they disturb their sleep. There are also fluorescent lights in the corridor, but they are extinguished when the dormitory lights are turned off. This, . Mr. Watts explained, makes it easier for Correctional Officers in the corridor to see what is taking place inside the dormitories. A . person standing in the corridor looking into the dormitory would be able to see the outline of a person at the end of the dormitory, but would not be able to identify that individual. Mr. Watts also gave some evidence as to the changing nature of Correctional Officers' responsibilities with respect to dormitory ,- :3 patrols. There was some question about the exact chain of events, that is to say when, for example, the dormitory clocks were installed, but none of this evidence is material to the matter in . dispute, which is whether or not the increase in dormitory patrols constitutes a violation of Article 18.1. Prior to the increase in rounds in dispute in this case, correctional Officers were requir\~d to do t~hree patrols each night. The first patrol would be around 10:30 p.m. before-the lights were turned out.. The second patrol would be in the middle of the night, at the discretion of the officers on duty. The third and final patrol would be in the morning after lights were turned back on. Officers would decide when to conduct the night patrol and this decision would be made based on their vievT as to when it was safe and appropriate for them to do so. If inmates were acting up, and throwing things around and shouting insults at the officers on duty, then they would likely postpone the patrol until the inmates had settled down. In general, it takes a Correctional Officer anywhere from 20 to 30 seconds to enter a dormitory, walk to the end of the hall, put the key in the clock and return to the corridor. These clocks are computerized, and the key is a kind of computer strip. The amount of time it takes to punch the clock can vary as sometimes the Officers have trouble punching the clock because it has been sabotaged by the innlates in some way. In addition to punching the clock, the officers are also to do a visual check to ensure that all the inmatHs are present and that l - .. 9 everything is in order. While one of the Correctional Officers on duty conducts the patrol the other stands at the door to the dormitory. The Officer conducting the patrol is not issued any protective equipment nor does he or she carry a weapon of any kind. If something were to happen to th"e Officer on patrol the other officer would push a I panic button. Central control would then notify the officer in I Charge, but Mr. Watts testified, given night-time staffing there would only be two persons available to come and assist the officer in charge and one other Correctional Officer. The closest Crisis Intervention Team is in Hamilton approximately 45 minutes away. Mr. Watts testified that after the frequency of the patrols was ~ncreased to one per hour after lights out, an additional officer was assigned to the shift. However, this'additional officer has numerous responsibilities throughout the institution and is also responsib¡e for relieving various other officers. In Mr. Watt's view, the presence of this additional Officer in no way improves the situation in that "it is still one Correctional Officer alone ! who does the dormitory patrols and the frequency of these patrols means that the inmates can be pretty sure about when to expect the next patrol. Moreover this problem is exacerbated by the fact . tha t the inmates can see the reflection of the patrolling guard through the plexiglass and can plan their activities accordingly. - - 10 . Mr. Watts gave considerable evidence with "respect to conditions within the Minimum Security part of the Centre. These conditions are described in the Special Entry Books. In preparing for the case the grievor reviewed these books for ·the period February 1986 to December 1990. These books are! kept on the desk in the corridor of the Minimum area, and Correctional Officers log unusual incidents in them. In his review of these books, Mr. Watts found approximately seventy entries describing events which could lead to Correctional Officers' health and safety being put in jeopardy. It is not necessary for the purpose of this award to enumerate and describe every such entry to the Board; a representative sampling will achieve the same result . In general,' the incidents described took place after lights out and involved inmates throwing things, attempting and succeeding to break windows, attempting and succeeding to Þreak the lights, making match bombs, ping pong bombs, setting fires, playing with water, making noise at night and frequently fighting among themselves. This fighting could, and sometimes did, lead to hospitalization. In one case, an inmate was found tied up in the dormitory with a note attached to him "to take the loony out", in another case an inmate found his bedding soiled by another inmate. The Special Entry Books described more than one inmate classified as "maximumll being placed in the minimum security dormitories, including one inmate charged with ·two counts of murder. One entry described an inmate fight and thE! suspicion of the Correctional I - . .., . 11 Officer on duty that í twas a I1set-upl1 . Many of the incidents described required the Correctional Officer to enter the dormitory involved and remove inmates. One inmate was removed because he was acting "strange and dangerous" and because the Correctional Officer on duty thought that he might lIexplodell at any time. Some incidents described sabotage attempts against the Correctional Officers, including shampoo being poured on the floor by the door to the dormitory so that the Correctional Officer would slip and fall when he or. she came inside. In this regard, another example of this sabotage was jamming the clock punch at the end of the corridor. Mr. Watts testified' that in dealing with these incidents, and others, Correctional Officers never know if the incident were real or if it had been arranged so as to' lure the Correctional Officer inside the dormitory for some ulterior purpose. In some cases, the Correctional Officer attempts to deal I with the problem by going to the door and ordering the inmates to quiet down, but in other cases it is necessary for the Officer to actually enter the dormitory. In cross-examination, Mr. Watts agreed that even before the October 1989 and the installation of watchclocks, Correctional I escape Officers were required, after lights out, to enter the dormitory and . walk to the end in order to ensure that security was maintained. Counsel for the employer also introduced into evidence a copy of a log book entry dated May 15, 1990, prepared and signed by Mr. Watts, indicating that on that date he checked and clocked . 12 , in all of the 'dormitories three times during lights out. Mr. Watts was also asked whether he had the discretion to decide not to check a dormitory if he determined that it would be dangerous to do so, and he agreed that he had tha.t discrHtion. Mr. Watts also testified that he was not aware of any incident involving a Correctional Officer being injured as a result of conducting a lights-out dormitory check. He was aware of a flashlight being available to Correctional Officer::; conducting dormitory checks, but has never seen it used for dormi 1:ory checks. Mr. King also testified. . His seniority dates to June 1973. Mr. King is the shop steward and form~r local president. He testified that for a long time, Correctional Officers were given the discretion as to when to conduct the lights-out dormitory check, and one reason why they had this discretion was to ensure that the inmates did not know when to expect the next check. Mr. King told the Board that on many occasions, because of inmate behaviour, he exercised his discretion not to go inside a dormitory. If the inmates were throwing things and the lights were out, Mr. King would not go in because he did not have any protective equipment and because it would not be possible to seH who was throwing what. Mr. King is of the view that as a result of the requirement that Correctional Officers must check each dormitory hourly, the discretion when to, or even not to, conduct a check has been removed and that this endangers h.is health and safety. Mr. King reiterated Mr. Watts's evidence that there was insufficient back- . :-. .. 13 up help should he or some other Correctional Officer be taken . hostage or get into difficulty inside a dormitory. This situation could turn out to be a serious one because weapons, such as knives made, for example, out of sharpened toothbrushes, are frequently found in the minimum area. In the grievor's view, the extra casual employee hired for the night shift did not provide significantly greater security because .he had various other institutional responsibilities, and the officer conducting the dormitory ?hecks was still required to do so alone. Mr. King is of the view that there is insufficient back up available in the institution, and he testified that the more often one must enter a dormitory the greater the danger one faces, and exacerbating this fact is the poor quality of the lighting in these dormitories. In cross-examination, Mr. King agreed that if the Correctional Officer on duty at the door to the dormitory called for assistance while the other Officer was inside conducting the check, the Officer in Charge and two other Correctional Officers could come and provide assistance. He testified that there was one case of an officer being punched while conducting a check, and that this incident probably took place in the early 19805. Mr. King confirmed that there was a flashlight at the desk that Officers could use, and that if they wished to they could carry a radio , while conducting their checks, although they did not like to do so at night because it might wake the inmates up. Certainly, the Officer at the door to the dormitory could wear a radio. , 14 ! Mr. Bob Thomas, the Senior Assistant Superintendent of the Centre since October 1988, gave evidence on behalf of the employer. Mr. Thomas is third in the chain of command; above him is the Deputy Superintendent and above the Deputy is the Superintendent. Mr. Thomas's major duties include direct supervision of the shift supervisors and indirect supervision of the Correctional Officers. Mr. Thomas also deals with inmate iss~J.es such as misconduct adjudication, and he is a member of the senior management team. As already noted, Mr. Thomas gave quite a different description of the workplace than either grievor. Mr. Thomas testified that the average inmate count in the minimum area was seventy, although it could go to a "high of ninety and a low of fifty-five. The average inmate COU::1t in each dormitory was fourteen to fifteen, but this could vary between a high of twenty and a low of twelve. The inmates in the minimum area posed only a minimal threat to security of the institution. They were, in Mr. Thomas's view, basically the non-violent types convicted of, or awaiting trial for, offenses such as impaired driving and theft. It was extremely rare for an inmate sentenced to more than two years in jail to be housed in the minimum area. It could happen if the maximum area was full, but only after a review of the inmate's file and a determination that this inmate posed only a minimal security risk. An inmate sentenced to five years in jail might qualify where, for example, that inmate had been convicted . : 15 of a white collar crime. Mr. Thomas testified that there are two Correctional Officers on duty during the day shift and two Correctional Officers on duty at night. correctional. Officers on daytime duty enter the dormitories to do checks in the same way as at night. The purpose of the dormitory checks in the minimum area is to visually confirm that no security breaches are taking place, that all the inmates can be accounted for and that no inmate is in distress. Mr. Thomas testified that prior to the October 1989 escape dormitory checks were conducted at least once, and frequently at least twice, after lights were turned out. In October 1989 three inmates escaped through a window at the back of one of the dormitories. The inmates broke through the window, sawed through the bars, removed the plexiglass and kicked out the security screening. ·A Ministry investigation of this escape was conducted and among the recommendations made was that the number of night-time security checks be increased to one every thirty minutes. The installation of a clock station at the back of each dormitory was also suggested, and these were installed in 'January 1990. Mr. Thomas advised the Board that the use of these dormitory stations began at the end of January 1990. When the stations first came . into use Correctional Officers were required to do two checks per night after lights out. As already . 16 . noted, this was later increased to one every thirty minutes. The union objected to this increase, and following an ERe meeting it was changed to one per hour. An addi tio::1al Correctional Officer was added to assist with back-up. By adding this casual, there are always two correcti~nal Officers ~.¡ithin thEa corridor, ensuring that one Correctional Officer is available at t,he door to the dormitory while the other does the check. Put another .way, prior to this change, a Correctional Officer may have been on duty alone in the corridor while the other Correc'tional Officer was off taking a break. This did not matter much when only two dormitory checks took place over the course of lights out. With the increase 1n checks it became necessary to ensure thaoc there were always two people available, and the new Correctional-Officer relieves the two Correctional Officers in the minimum area. The new Correctional Officer also, as already indicated, performs other duties throughout the Centre. Mr. Thomas test:Lfied that Correctional Officers haye the discretion when during the hour to conduct the check. In the case of an emergency, Mr. Thomas testified that the Correctional Officer could press the panic button located at each door to each dormitory. This button would set off an alarm in the Central Control module, and the emergency would then be announced over the Public Address system. All avai.lable staff would then respond. On the night shift this would include the officer on duty outside the dormitory door, the casual Correctional Officer, the l . · .. 17 shift superintendent and, if necessary, one of the two officers on I duty in the maximum area. In an extreme emergency, the Officer on duty in the Young Offenders Unit could be called upon, and off-duty staff could be called in. With respect to the incident described by Mr. King of an officer being attacked, Mr. Thomas testified that it involved two Correctional Officers removing a misbehaving inmate from the minimum area. As the inmate was being led away to segregation he pushed one of the officers in the che·st. The inmate was immediately restrained and taken away. Mr. Thomas also testifi~d that prior to the instant grievance no Correctional Officer had ever complained to him about insufficient lighting in the dormitories. In cross-examination, Mr. Thomas conceded that he has had no experience as a frontline Correctional Officer. He also indicated that he worked days, not nights, and so he was not completely familiar with night-time conditions. with respect to the October 1989 escape, Mr. Thomas told the Board that one of the inmates involved was being held on a murder charge, although he testified that the escape incident was the only time an accused murderer was put in the minimum area. The decision to transfer an inmate from the maximum to the minimum area is generally discussed at a classification meeting, although the decision could be taken by a shift supervisor on his ôr her own initiative. ! 18 ! Mr. Thomas also testified that changes to the physical security of the dormitories have been made as a result of the escape, namely new windows have been installed, making it less likely that a similar escape can or will occur in the future. Mr. Thomas agreed that there was a certain amount of risk inherent in entering a dormitory, but he testified that a Correctional Officer can always contact the Shift Superintendent and advise him or her that there is some problem and that the officer does not wish to enter the dormitory. Mr. Thomas agreed that the risk to officers would be reduced if there were some barrier between the inmates and the officer performing the check. The View On March 13, 1991 the members of the Board, counsel for the union and the employer, Mr. Thomas and one of thE~ grievors "took a view" of the Minimum Security part of the Niagara Detention Centre. The view took place shortly after lights out, and it included looking at all of the dormitories and touring one empty dormitory. Suffice it to say that the lighting conditions permit a person in the corridor to see to the end of the do~itory. The person in the . corridor could see. shapes of persons, but would probably not be able to identify individuals. Overall, hO~l'lever , there was fairly good visibility into the dormitories, and the bathrooms were well light. The Board also noted that in at least one dormitory, extra beds had been installed in the dayroom portion. I ) . õ 19 Argument Union counsel. argued that Article 18.1 of the collective Agreement creates two obligations: the first on the employer to make reasonable provisions of the safety and health of its employees; the second on the union and the employer to cooperate in health and safety matters. In counsel's sUbmission; the instant case raises only the first obligation of the provision, which leads to the question: is the obligation to perform hourly patrols of each dormitory consistent with the employer's obligation in the Collective Agreement? In counsel's view, the requirement to patrol once per hour creates an unreasonable and unnecessary risk given the security concerns the employer has raised. In the result, counsel took the position that the employer has failed to meet its responsibility under the Collective Agreement. I I Counsel referred the Board to Stockwell 1764/87 (Wilson), one of the leading cases on point. In stockwell, the grievor alleged that the employer was not. making reasonable provisions for her health and safety under Article 18.i of the Collective Agreement. Very simply, the facts in this case were that the grievor, a Correctional Of·f icer , was locked in a van in the secure portion with one or more inmates as the inmates were being transferred from point A to point B. . In these circumstances, the union argued that ! . 20 if there were an accident and the driver of the van was incapacitated, the grievor and the inmates she was escorting would be locked in with no way of escape. This, she argued, was contrary to the employer's Collective Agreement responsibility. Counsel in the Stockwell case, (as in the instant one) , submitted that there were two issues to be determined: first, whether there was a risk, and second, whether the employer had acted In accordance with the Collective Agreement. The Board in Stockwell reviewed the jurisprudence, including OPSEU (Union Grievance) 69, 70/84 (Samuels) where the Board held that:: Article 18.1 speaks of reasonable provisions 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...Theré is no obligation to guarantee an employee's safety' against every possible risk, no matter how remote the possibility that it will occur. The collective agreement and the legislation contemplate "reasonable" precaution...It is necessary to balance the safety of the employees against the need for care and custody of the inmates and t.he purposes of the institution. Proper planning can reduce the potential or likelihood of incidents, but it :.s not possible to eliminate all conceivable risks (at 6-8) . (emphasis as in the original) In the Union Grievance the Board found that the Union had failed to demonstrate a real or serious possibility of harm, and dismissed the grievance on this basis. Similarly, in stockwell, the employer "emphasized the importance of having a Correctional Officer in the secure portion with an inmate. The danger is hypothetical and . . i 21 indeed no specific example of the alleged danger could be given" (at 13) . The Board in the Stockwell case, however, adopted the . test set out in the Union Grievance but reached a different result. The Board said: There are inherent risks that go with the job but a Correctional Officer is not required to meet unnecessary dangers or risks. The possibility of a road accident is always a very real possibility on . today' s roads. No evidence of that possibility was really . even necessary...The possibility of being trapped ~n the secure portion of the van is not in any event merely hypothetical but well within the range of every day possibilities...The competing factor is the claim of greater security of inmates provided by the physical presence of an officer in the secure portion. But the evidence of the value of such presence is essentially a matter of degree at best and of opinion at worst. . . It therefore seems to me that the balance should be struck in favour of improved safety for the Correctional Officers (at 14":;15). The matter of remedy in Stockwell was remitted to the parties. Union counsel urged that the test set out in Stockwell, as derived from the earlier Union Grievance, should also be applied in the instant case. In counsel's submission, the evidence" established that there was a risk of injury every time a Correctional Officer entered a dormitory, and it was, therefore, incumbent upon the Board to determine whether or not that risk represented a balance between the health and safety concerns of the employees; and the security concerns of the employer. I In counsel's submission, the risks to Correctional Officers came from the classification of inmates in their charge, Le., the ! 22 . presence of maximum security inmates in these minimum dormitories. The risk, moreover, was made apparent by t:he activities documented in the Special Entry Book. This risk was aggravated by the fact that inmates are found in possession of 1iJeapOns, by the lighting condi t.ions in the Minimum securit:y area, by the inadequate back-up assistance available, and by the removal of discretion from Correctional Officers as to when 1:hey would conduct their dorrni tory patrols. Counsel submitted that the possibility was real th-at each time a correctional Officer enters a dormi-tory he or she could come into serious danger. Counsel po~nted out that the increase in required patrols came after the October 1989 escape, and that prior to that point the employer was satisfied that its security interests were being maintained by one patrol after lights out. The recommendation for increased patrols instituted after the escape had the effect, counsel suggested, of increasing some six- or sevenfold the night- time exposure of Correctional Officers to inmates in circumstances which could hardly be described as ideal. While there was no evidence of Correctional Officers being harmed while conducting these night-time patrols, that was not, counsel argued, the point. The point was whether or not the possibility of harm existed and whether or not an appropriate balance between the competing interests of union members and the employer had been met. Counsel pointed out that the employer did not call any I I I · ~ 23 evidence to show that the increase in patrols was necessary to meet its security concerns, and counsel observed that none of the reports or recommendations of the investigation following the October 1989 escape was introduced into evidence. Put another way, there was no evidence as to why the increase in patrols was necessary or justified. Just because the employer says that the increase is necessary does not, counsel submitted, make it so. The employer must, given the provisions of Article 18.1, demonstrate the necessity where a balancing of interests mus~ take place. In counsel1s submission, the evidence established that the employer had gone overboard, and that the grievors were being exposed to unreasonable and unnecessary risk by the increase in patrols. Counsel .for the employer argued that the employer had meet its obligations under both parts of Article 18.1. In counsel's view, the evidence established that the employer was making reasonable provisions for the safety and health of its employees. Moreover, counsel took the position that the employer had discharged its obligation to the union by holding an ERe meeting and as a result , of that meeting reducing the frequency of patrols from two per hour to one per hour. Counsel pointed out that Correctional Officers have been conducting the type of patrol in issue in this case for many years, and he · 24 0 argued that the only thing that has changed is the frequency of the patrols. In this regard, counsel pointed out that the evidence established that there were no complaints when the patrol was increased to three times per s~ift. Ther:~ , when the patrols were increased to twelve per shift, an ERC meeting was held and as a result of that meeting the required patrols were reduced to three per shift. It was, accordingly, significant that the grievance was not brought as a union policy gri.evance. with respect to the jurisprudence, counsel pointed out that in the Union Grievance referred to above the Board said that "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 6-7) . See also Briek 1466/87 (Dissanayake). Counsel also referred the Board to OPSEU (Union Grievance) 0335/85 (Roberts) , and argued that none of these awards imposed an obligation on the employer to guarantee against all risks of injury. All that Article 18.1 and the jurisprudence required was that the employer take reasonable precautions against injury. In.counsel's view, the dormitory patrols were necessary to maintain the security of the institution, to check on the health and safety of the inmates in the dormitories and to provide a record of when the checks were done. Turning to the evidence, counsel argued that it did not disclose or give rise to a breach of Article 18.1. The patrols were done in pairs, and one officer remained in the I . . ~ 25 corridor and could see the other officer at all times, there were panic buttons at the entrance to each dormitory, an intercom system and portable radios" and there were also significant reinforcement~ available should they be required. In this regard, counsel pointed out that the employer hired a casual employee to ensure that there was sufficient personnel. Moreover, counsel argued that Correctional Officers maintained the discretion not to conduct a patrol if they felt that there was a danger in doing so. In that situation, all the officer would have to do is contact the commanding officer and explain the circumstances. It was noteworthy, counsel suggested, that there was no difference in staffing levels 'on the day and night shifts. It was also wor~h.taking into account the fact that other than the horseplay and rowdiness one would expect to find in a detention' centre, the union could not point to an example of a Correctional Officer being injured while conducting one of these patrols. Counsel also pointed that it was rare for an inmate classified maximum security to find himself in one of these minimum security dormitories. And in counselts view, the level of lighting in the dormitories did not support the union allegation of a safety and health risk. In closing, counsel submitted that the union had failed to establish a violation of Article 18 . 1, and that sufficient and reasonable precautions were in place. In counsel IS view, the increase in shifts was neither unreasonable nor unwarranted, and he asked the Board to dismiss the two grievances. · ~ 26 Decision The issue to be determined i.n this casl is a relatively straightforward one: by requiring one p,3.trol of each dormitory every hour after lights out, i'~ the employer failing to make .:> reasonable provisions for the safety and health of Correctional Officers during the hours of their employmønt? After considerable reflection and consideration of the arguments and authorities, we have concluded that this question must be answered in the affirmative. In our view, by increasing the number of patrols from one or two (pre-escape) to six or seven pE~r shift during lights out the employer is increasing the exposure to danger faced by Correctional Officers. Having heard the evidence, and having toured the facility, we are of the view that there is a potential for injury every time a Correctional Officer conducts one of these dormitory patrols. To be sure, risk is part of the job. However, unnecessary risk is not. The employer has an obligation to take reasonable precautions for the safety and health of its employees. Like other panels of" this Board, we are of the view that "reasonable" does not mean "every." And we are also of the view that what is reasonable will depend greatly on the facts of each case, and must involve a balancing of interests of the employees and the employer. In 'the instant case, I I I I . <, '; 27 the fact that no employee has been attacked or injured while conducting a patrol is neither here nor there in the same way that the concerns raiséd in the Stockwell case had not taken place. It is .obvious that the potential for injury exists. In our view, it is not unreasonable in a case where the union has demonstrated some degree of risk to the safety and health of employees to require the employer to explain, if not justify, the necessity and reasonableness of that employer-imposed risk. In a safety and health matter it is simply not sufficient for the employer to state that it believes a certain amount of increased risk is necessary without taking the next step and convincingly explaining why. A failure to take this next- step leads to the conclusion in the instant case that while the employer considers increased patrol~ desirable (and some reasons were given in support of this position) , it has not fully turned its attention to the potential safety and health consequences of the increase in patrols for its employees, nor has it carefully assessed whether such an increase conforms to the requirements of Article 18. l- In light of the evidence and arguments we have heard, and in the absence of any explanation why the investigators recommended an increase in patrols to two per hour, or why this was later reduced to one per hour, we find that the increase is unnecessary and constitutes a violation of Article 18.1. Simply put, we are of the view, based . on the evidence we heard, that the requirement for hourly patrols is unnecessary to maintain the security of this part of the . 28 . institution. This requirement unnecessarily increases the risk to Correctional Officers. A balance must be struck, and as in stockWE!ll we strike the balance in this case in favour of improved safety for Correctional Officers. We do not find that the E~mployer has taken all reasonable steps to ensure the safety and health of its employees. The evidence is that prior to the October 1989 escape one lights- out patrol was considered sufficient to maintain the security of the institution, and while the employer may, in response to its perceived need for greater security, wish to increase that number somewhat, we heard no evidence that a six- or sevenfold increase is necessary to maintain institutional security and warrants requiring Correctional Officers to significantly increase their exposure to inmates. We find tha.t the discretion as to when to patrol· the dormitories, while not eliminated, has been significantly reduced, and that this reduction in discretion, like the increase in patrols, is not without potentially serious safety and health implications. We also take note of the fact that security in the dormitories was significantly improved through the installation of new windows. The fact that an ERe meeting took place, and that these grievances are personal and not policy is not relevant to the issue before us. A few' final observations. We find the lighting in the dormitories satisfactory. So too is the level of back-up assistance available. I ~ .. c~ 29 However, the whole point about back-up assistance is that it is only available after the fact, after, in the worst case scenario, a serious assault or hostage-taking has occurred. There was some evidence about overcrowding in the facility, but this evidence was contradictory, and it is not necessary, in. any event, for us to make a finding with respect to it for the purposes of this award. Similarly, the occasional presence of maximum security inmates in the minimum dormitories is not determinative of the result we have reached. In the result, both grievances are upheld and the matter is remitted to the parties. The Board remains seized with respect to remedy if the parties are unable to reach an agreement. Dated at Taranto this 12tlday of April 199 1- J ,( ) :',' ,/ (¡/[,l /! ~ --.. . / ~illiam Kaplan Vice-Chairoerson ~f~&vL Member ~J'[~.j - ~ ~ . D. Montrose Member