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HomeMy WebLinkAbout1992-0964.Union.94-05-05 ( ........--.. . --'-.'---" - -- (~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ./',;., ~ _ 1111 GRIEVANCE COMMISSION DE , : . SETTLEMENT REGlEMENT ,. BOARD DES GRIEFS. 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELE:COPIE (416) 326-1396 964/92, 965/92 IN THE MATTER OF AN ARBITRATION Under I- THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - Tpe Crown in Right of Ontario (Ministry of Correctional Services.) Employer I' BEFORE: A Barrett Vice-Chairperson P. Klym. Member M. O'Toole Member FOR THE A. Ryder UNION Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HEARING March 1, 1993 July 16, 1993 March 16, 1994 ! \.. I _. -..,'-- - - ( (' -. D E CIS ION t\ The upion in two related grievances alleges that the employer has failed to make reasonable provisions for the health and safety, of the staff at Millbrook Correctional Centre contrary to Article 18 1 of the collective 4greement , Millbrook is a maximum-security institution housing about 220 / inmates Many inmates are high-risk behaviour problems In May, 1992, a decision was made to start an Outside Inmate Work Program At the time there were two Groundskeepers employed to maintain the huge institution grounds, but they were unable to. handle all of the work and needed inmate help The work is performed outside the walls of the institution where only minimum security is offered The inmates selected for the program are housed in two four-bed dormitories, apart from the general population, for 16 hours out of 24 and are monitored by closed- \ circuit television and security checks The union does not object to the security provisions for the ihmates while inside the walls of tne prison The objection is to the inmates being outside eight hours a day, supervised only by the Groundskeepers who have work to do themselves and cannot always keep the inmates under full \ surveillance The health and safety risk foreseen by the correctional staff is that the inmates may be able to pick up contraband, ie , drugs, on the outside, then smuggle them back inside either in' body cavities or by throwing things over the wall for pick-up later in the exercise yard The inmates have the use ~ . - . ~ ( -..- - ( 2 of a telephone which is not monitored and they could arrange for ,~ the drop-off of drugs in the grounds outside the walls Inmates under the influence of drugs often ,cause disturbances and are therefore a risk to the ,health and safety of the correctional staff Therefore, says the union, there should be at least 'one Correctional Officer outside with the inmates keeping them under constant scrutiny ) Manag~ment says that it has considered the security risks, and \ structured the program so as to minimize them to reasonable and acceptable levels An outline of the program was set out in a memorandum from the Deputy Superintendent to all staff just before the inception of the program It is reproduced below \ "OUTSIDE INMATE WORK PROGRAM Although initially, only three inmates have been selected for this 'program,u, it is anticipated that the normal complement could be seven or eight The initially se~ected inmates will be housed in the two four-bed dormitories, located ~cross from the Duty Office on Sunday May 31, 1992 The two dormitories and occupants will be monitored by closed circuit television, viewed at 5 wing control Five wing Officers will be responsible fot security checks, meals, doctor's parade, etc , and will maintain a log i book at 5 wing It is anticipated that as a normal routine, one inmate "- Will remain to clean the two dormitories while the remainder proceed outside to work duties The two Groundskeepers will escort the outside workers at approximately 08:00 hours, (prior to inmate Shop workers movement) to the Admissions and Discharge area There the Workers will be strip searched and es~orted outside for the days activities (- -_........_---~..-"-_... ( 3 At lunch time, all the inmates will assemble at the '^ Warehouse where iq,a designated area they will eat their lunch (delivered by the Kitchen staff in an outside workers meal cart) One or both of the Groundskeepers will be present during lunch time The inmates will be returned inside the Institution shortly before 16 00 hours On their return, they will be strip searched once again and then escorted by the Groundskeepers, to their respective living units Within the unit, the inmates will be provided with the amenities of a small refrigerator, a ,toa.ster and an electric kettle Limited amounts of snack foods, and beverages will be available to them at all times For recreation the inmates will be allowed to attend weights twice a week, and will be provided with sports pe~iods (limited) in the 5 wing yard, Saturday and Sunday mornings II We heard evidence from the Senior Assistant Superintendent who was charged with setting up the program and cha.iring the committee that selected the inmates The selection committee consisted of three management personnel They con,s idered only inmates with 90 days or less remaining of their sentence, and immediately eliminated anyone with a history of violence or escapes, or convicted of a very serious crime. The ,committee then solicited input from several sources The Medical Department was asked to advise on physical fitness, a Correctional Officer in the inmate's unit was asked to comment on behaviour, an Industrial Officer was queriep 9bouthis work habits, then the psychology and Social Work Departments were asked to assess candidates for personal suitability If an inmate passed all of these hurdles~ the committee then did an in-depth study of the inmate's file to examine what could often be a lengthy past history for escapes, assaultive behaviour, etc The committee then made a recommendation - " (- .- -~--_._---_. .- ( 4 to the Superintendent who reviewed all of the material and made the final decision Although the program can accommodate up to eight inmates, there has never been more than f.our in it, and sometimes fewer In management's opinion, the twice-daily strip searches and dormitory searches conducted two-to-four times a month are sufficient protection against the importation of contraband Exercise yardS and th~ weight room are searched before and after use by the inmates The outside worker inmates do not mix with the general population In all of the strip searches and dormitory searches since the inception of the program, ( there has never be.en any contraband found. However, very recently an ipmate on the outside work program was found to be impaired (probably by drugs) and a piece of hashish was found hidden .in the weight room after use by the outside worker inmates Apparently the next day some inmates in another wing were found to be impaired, and a search of their cell area revealed some hashish and valium Although it could not be proven, the Acting Senior Assistant Superintendent suspects I that the drugs were brought in by an outside inmate worker As a result, the outside workers are now no longer allowed the use of the weight room The Superintendent testified that despite numerous security procedures, drugs do occasionally get into the institution through various means The Groundskeepers were given special training in inmate custody and control prior to assuming responsibility for the inmates and they receive the custodial responpibility allowance ! , ~ - . -~-- . . -- -. .~.~'. ( I \ 5 The union described a now-defunct annex program as being the predecessor to the outside workers program \ by It was staffed Correctional Officers, and the union asserts that this new program should be similarly staffed The annex program was discontinued in October, 1991, when it w~s det~rmined that the building housing the inmates outside the walls of the institution was in need of prohibitively-expensive repair For lack of funds to repair the \' building, the program was shut down and the two Groundskeepers were hired We heard a substantial amount of evidence about the operation of the annex program Mr Don Hall testified that he worked on-and-off in the annex program as a Correctional Officer for about 15 years, pretty well full time for the last three years before its closure There was I a 12-bed dormitory located ou'tside the prison walls, and the .- inmates lived and worked outside the walls Their food was prought out from the kitchen three times a day, and the inmates entered the institution only to attend medica\l appointments or the like, in which c~se they were escorted by a Correctional Officer This was a minimum-security setting and only inmates with 90 days or less to serve were permitted .in the progratn Mr Hall testified that he was told never to take his eyes off the inmates when they were \ working The Correctional Officers were there to watch the inmates and not to perform manual labour themselves The Correctional Officers searched the inmates on an irregular basis about once a week, but only strip-searched them after visits from friends and ~ - - --.,.-- .- ---.....-..-. -- - -~. ( ,I"" \ 6 ~ relatives The annex inmates were alsl;) involved in the temporary absence program, wherein a Cortectional Officer would take a crew of about four inmat~s out into the community to perform work such as raking leqves, shovelling snow, pai~ting and maintenance for seniors and churches The inmates worked about 50% of their time on the institution property and about 50% of the time in the cornmu~ity On days there were two Correctional Officers supervising the inmates, plus a Sup"ervisor who stayed "in his off'ice There were occasional escapes, and drugs were found from time-to-time on the inmates The inmates were allowed open visits with relatives which means they were allowed to touch them, thus giving rise to an opportunity to pass drugs After 4 30 pm, when the inmates were locked up in their annex, one Corre~tional Officer supervised them by patrolling the area Under cross-examination, Mr Hall conceded that the annex program inmates were not always in constant sight of a Correctional Officer Inmates employed doing snow removal rode a tractor alone in sight only of a camera on the tower Sometimes inmates cleared snow at night, again under the surveillance only of the camera Also an inmate cleaner usually cleaned the .inside of the annex building everyday, alone and unsupervised, with a Correctional Officer checking on him from time-to-time - - -_..~-~~. --..,,- ...... ~--'---~-~.- ( (. 7 Other witnesses testified that the Correctional Officers " ,sometimes did work alongside the inmates ,and that individual work parti~S were not always under constant surveillance Mr Karl DeGrandis, who has been the Superintendent at Millbrook since June, 1990, testified that when he arrived at the institution, it was not unusual to see inmates on the annex program working around his }louse on the ground,s where two inmates may be cutting the back lawn and two more digging the front flower beds, all of them supervised by one Correctional Officer who could not possibly have all four under surveillance at all times He also saw the Correctional Officers working alongside the inmates on occasion, and he did not have any difficulty with this He did not expect the Correctional Officers to have all inmates under constant visual supervision Mr Craig Maher, who was the Senior Assistant Superintendent of Millbrook until November / 1992/ and who was responsible for both the annex program and setting up the outside workers program/ su:rnrned up the similarities and differences between the two programs First of all, with respect to living arrangements, there were usually the maximum number of twelve inmates housed in the building outside the walls / so that they were in a minimum-security setting 24 hours per day The inmate workers program has never had more than four inmates, and they are hqused in a maximum-security setting for 16 hours out of 24, monitored by Correctional Officers, and in a minimum-security setting for eight hours per day in the .--" I ( - '-- c. 8 \ custody of Groundskeepers The outside workers work only on the property, while the annex workers worked about 50% of their time in the community With respect to visiting privileges, the annex I ( workers were allowed full-contact visits in the minimum-security mode, while the outside workers have maximum-security visits behind plexiglass, with telephone contact only Both workers operate the same types of equipment, ie , in each program an inmate was allowed to go off on the snow plough by himself, with the requirement only that he check back once per hour and be under camera surveillance With respect to escapes, Mr Maher said that there was about one per year from the annex program, and there has been none from the outside workers program The search results in both programs reveal - that contraband was found by the staff about once or twice a year with the annex work'ers and never with the outside workers The annex program had no security cameras inside the building, whereas the outside workers un~~s each have a security camera focused on the dayroom area Cameras are the primary method of supervising the outside workers, whereas the physical presence of a Correctional Officer was the 'primary method of watching the annex workers In the case of each type of worker, any visits to the inside of the prison for medical appointments, etc , are always done under the t, escort of a Correctional Officer The thrust of the union argument is that for about 20 years while the annex program was in place, management deemed it necessary for the health and safety of all concerned thc;lt Correctional Officers supervise inmates working outside the . .- ( ( - _____ ___V._.' , 9 grounds Their primary job was to keep the inmates under -, surveillance at all times arid not to perform the manual labour \ That, says the union, is an indication of what management felt were ( reasonable precautions, and anything less is unreasonable The nub 9f the risk to correctional staff is the movement of the inmates - from the minimum security outside to maximum security inside, with only non-infallible strip searches to weed out the possibility of the importation of contraband Union counsel argues that it does not have to prove that actual harm has occurred( with the existing security arrangements, only that there is a real possibility of harm Employer counsel argues that this is really a territorial ( dispute The Correct.ional Officers do not want Groundskeepers supervising inmates when they used to do the job themselves However, there is nothing unusual about having non-correctional staff supervise inmates There are other inmates on the property being supervised by Greenhousekeepers, Agricultural Workers and Industrial Officers They pose no more of a security risk than do the outside worker inmates, as long as satisfactory checks and balances are kept in place, which the results clearly show has been accomplished in the outside workers program The search results have been remarkable, and there has been no increase in contraband or staff injuries or escapes There is simply no ~vidence of any increased health and safety risk for the staff ) I ---.....-.--.-------:- ! (I -_..~. --.--~'._--'---_.- ( \, 10 :. On the evidence, we cannot find any undue risk to the health and safety of the staff arising out of the outside workers program A comparison of this program to the annex program is not really o~ much assistance in assessing the risk b~cause it was a substantially different program in size and scope h . I T e precautlons taken by management to separate the outside workers from the general population seem to be effective The concept of two Groundskeepers supervising up to four inmates does not in fact or in theory appear to constitute lax security While it is true the Groundskeepers have their own duties to perform, they also have fewer people to supervise than the Correctional Officers in the annex program had The escape and contraband record in the new program speaks for i~self In result, the grievances are dismissed ! I Dated at Toronto this 5th day of May, 1994 ~~ A. Barrett, Vice-Chairperson ylf~/)~/ (see addendum) p Klym, Member m f ()17~o ~. I M O'Toole, Member i ---~ --_.-- ... ---- I ( 4_._..__.... ---..--.--.--.- l ....J; ,., GSB 964/92, 965/92 ADDENDUM Based on the situation presented to the Board, particularly regarding the number of inmates actually assigned to and supervised by the groundskeepers,the work performed, the housing of the inmates and the security precautions undertaken in these circumstances, I agree with the finding that the employer has not failed to make reasonable provisions for the health and safety of' its employees. Should the situation change materially or the number of inmates assigned to the program increase, it is expected that I the security arrangements will be re-assessed and adapted as necessary. Jl.k~~/ J{=Jr- Peter Klyrn \ ..