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HomeMy WebLinkAbout1993-1916.Stewart.94-09-09 ~----;---- ~ . . . ,,' o( ,. -. = ONTARIO EMPLOYES DE LA COURONNE I CROWN EMPLOYEES DE L 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT . REGLEMENT aOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OU~ST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE IT$LECOPIE (416) 326-1396 1916/93,1917/93, 1919/93,2595/93 IN THE MATTER OF AN ARBITRATION 'Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING "ACT Before ~ THE GR~EVANCE SETTLEMENT BOARD j ,/ BETWEEN OPSEU (Stewart et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services), Employer BEFORE W. Kaplan Vice-Chairperson E Seymour Member M O'Toole Member '\ FOR THE A. Ryder GRIEVOR Counsel Ryder Whitaker Wright Barristers & Solicitors I FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of Correctional Services HEARING June 1, 1994 August 1',5, 1994 \ - - ------- -----'------ ...-.,~.,......._,......"........ ~ / - 2 Introduction Michael Bunting, Robert Bergeron, T David Bowles, Don Sutherland and Brady 'Stewart are all correctional officers employed at the Pem~roke Jail (hereafter "the JaW') In October 1993, each of these correctional officers filed a grievance alleging a violation of the health and safety 'provision of the Collective Agreement. In brief, the grievors allege that management's decision to close one unit at the Jail, and the overCrowding which occurred on several occasions in the result, unnecessarily jeopardizes their health and safety The employer took the position that there had been no \. collective agreementoreach The case proceeded to a hearing in Toronto ) Subsequently, and at the parties joint reque~t, the Board took a view of the Jail and the case then proceeded to argument. J \ The Union's Case ( " Evidence of Brady Stewar:t Mr Stewart testifie'd He is a correctional officer and one of the grievors, and he began his evidence by describing the Jail. As the Board subsequently l visited the Jail there is no need, in this award, to set out a detailed description of the facility Suffice it to say that immediately adjacent to the entry to the Jail are two holding cells, each of which is equipped to house one inmate One of these cells is also equipped with a toilet. Along \ this same corridor one finds a conference room, a room for inmate visits and a room for lawyers' visits There are a total of five different units; three are found on the first floor and two on the second. Units Two and Four contain eight cells, each of \ Unit One contains four tells, each of which which is equipped with one bed is equipped with three beds Unit Three contains three cells, each of which '\ - 3 \ is equipped with three beds Unit Five, which is now closed, contains five cells, each of which is equipped with two beds. The cells in all of the units are very small, the adjacent living area is also far -from commodious The three-bed cells are extremely crowded, and one of the 3 mattresses is placed on the floor There are also three segregation cells, each of which is equipped with one permanent cement slab sleeping platform. These cells appear to be the largest in the facility Excluding Unit Five there are 42 beds available in the facility, comprised of 37 unit beds~ tV/o admitting and discharge beds and three segrega~ion cell beds. Unit Five was discussed at an August 1992 ERCmeeting I The union raised the concern that number 5 wing was I recently closed As a result the other wings were then I filled to capacity, which did not permit the separation of several disruptive inmates. The Superintendent stated I i that the closure was necessary to clean the area Mr I Roberts [then the Regional Manager of Personnel] I I. indicated that this may happen provided it does not I create overcrowding. The employer noted the concerns presented by the union and that this is management's I decision I ~ ( In March 1993, P H.Ca";lpbell, the Superintendent of the Jail, issued-the following memorandum I In order to clarify when it will be permissible to :open#S wing the following will apply. ~ 1 ) When the physical count in the Jail is 41 or higher 2) #S wing may be used for a female as long as this does not entail additional cost, e g female officer already on duty do not tall in a second - use segregation ensuring privacy for female inmate / - .-<- -_._-~---- \ ! 4 I ., After this memorandum was issued Unit Five was occasionally be opened. On August 30, 1993, the Jail received a notice from the Regional Manager. - Effective September 6, 1993, Wing #5 at the Pembroke Jail will be closed until further notice as part of the Eastern Region expenditure reduction plan The operational capacity of this jail is 47 The closure of #5 wing (10 beds) will reduce the capacity to 37 beds. Over the past several- weeks, the count at the pembroke Jail has indicated that this closure would be both feasible and cost effective as this wing is normCilly staffed during the hours of "unlock" Superintendent Campbell will endeavour to use all " I j alternate ~ccommodatjons such as segregation and/or A & D cells for short term accommodation should the count exceed 37 Superintendent Campbell will also examine ways of enhancing Extended T.A Programmes. A substantial saving may be achieved by redeploying the #5 wing post to cover absences such as sickness, social contract \ vacancies, etc. ,- The grievances in this case were filed in the fall of 1993 Among the documents introduced into evidence was a chart indicating inmate counts I between January and December 1993 This chart indicates that on October 16, 1 993 there were 43 inmates housed at the Jail On Octoper 17, 1993, there were 44 inmates housed at the Jail. And on October 18, 1 993 there ) were 47 inmates housed at the Jail. On November 27 & 29, 1993 there were 43 inmates housed at the Jail. \ ,- - -- 5 In December 1993, Superintendent Campbell posted the following 'j memorandum: As you are aware there have been a number of grievances filed regarding the use of #5 Wing at the Pembroke jail \ \ In order to clarify the response I have the authority to open #5 Wing should the situation warrant same However the criteria to open #5 Wing is not based solely on counts. In order to consider opening #5 Wing the circumstances must be extenuating and unusual Should the Shift IIC feel that #5 Wing should be opened ] for the above criteria the following process will be followed: 1) Contact Superintendent 2) Contact Lt. K. Schultz as per standing order #1 3) Contact Lt. J Gauthier as per standing order #1 i 4) Contact Regional on call person It must be noted that the order of contact must b~ followed and that the first person contacted will make the decision Under no circumstance after contact has been made following the priority listed will anyope else be contacted in an attempt to override the situation [emphasis not ours] In Mr Stewart's view, Unit Five is an essential part of the institution It was often used to alleviate overcrowding. It was, also used to house wee~end inmates. These inmates only receive a visual strip search on entry, and by housing them in ~nit Five they could be kept away from the regular inmates and in that way reduce the flow of contraband " ! 6 Units One, Two, Three and Four can house a maximum of 37 inmates, and according to Mr Stewart an increase in inmate numbers affects the ability of the correctional officers to watch and supervise the inmates It also \ negatively impacts on the health and safety of the cortec~ional officers as overcrowding tends to increase the level of inmate frustration In Mr Stewart's experience, inmates quickly become aware when the Jail is overcrowded and this awareness has an immediate effect on their behaviour For instance, at meal .times weaker inmates will lose their meals to stronger inmates who realize that the correctional officers are not able to maintain an effective vigilance over inmate activities Mr Stewart also' told the Board that an overcrowded Jail ha,s an effect on inmate demeanour Inmate complaints'increase, and one reason they do is because there a.re not enough tables and chairs in the adjacent living areas for everyone The stronger inmates get to sit on the chairs, the weaker inmates are relegated to the floor Inmates, in these circumstances, become more violent, and they become more abusive of each other and of the correctional officers. The change in inmate behaviour is marked by a corresponding increase in the level of correctional officer stress. This stress is exacerbated by the fact that the correctional officers are aware that Unit Five is available and could readily be put to use Correctional officers assigned to the night shift are responsible for taking inmate counts They are required to visually inspect each inmate., When the Jail is Qvercrowded this becomes quite", difficult as sometimes inmates are also housed in the two holding cells and the lawyers' room. Moreover, up to three inmates may be placed in each of the segregation cells, and it is somewhat difficult, given the configuration of those cells, for the ~ \ , 7 I I I correctional officers to see each inmate The use of the segregation cells to house inmates when the Jail is overcrowded is an issue of particular concern to Mr Stewart. He testified that the purpose of these cells is to provide a place to put disruptive inmates. In his view, they should not be used to house inmates drawn .from the general population Moreover, Mr Stewart expressed the view that it is not appropriate to house prisoners in the lawyers' room and in the admitting cells. AlthougH the lawyers' room can be locked, there is no night light and so the main light must be kept on all night. This is extremely disruptive to the inmates who must, in any event, sleep on mattresses on the floor Mr Stewart also told the Board that while the Superintendent, in his I December 1993 memorandum referred to "extenuating circumstances" permitting the opening of Unit Five, to date it has never be~n opened because of overcrowding He acknowledged, however, that the institution has not, since this memorandum was posted, had more prisoners than beds. Unit Five has, nevertheless, been used for other activities ~uch as inmate meetings Mr Stewart is aware of a number of situations in which the employer could open Unit Five to relieve overcrowding without having to increase staff complement. Mr Stewart also testified with respect to some of the problems he and other correctional officers face when female offenders are incarcerated at the Jail. He candidly admitted that few female prisoners are brought into the Jail, and that it is extremely unusual for the jail to hold a female prisoner for more than a night or two Nevertheless, if the Jail was filled - to capacity, and if the segregation units were bei!lg used to hold prisoners, the only place left to put the female prisoner would be in one of the two \ \ ~ i - 8 cells in the admitting and discharge area The problem with placing a female prisoner in one of these cells is that they are entirely visible to correctional officers and others (including prisoners) walking through or \ being eSyorted through the corridor One of these cells has a toilet and it 1 was conceivable that the female prisoner could be seen by ~orrectional officers and others using the toilet as they passed by her cell In Mr Stewart's view, Unit Five should be used, in these circumstances, for the female prisoner ? -, Cross-Examination of Mr. Stewart \ Mr Stewart was asked a number of questions in cross-examination I He agreed that his correctional officer training allows him to identify inmate moods, both group and individual However, Mr Stewart is of the view that I his training did not prepare him for dealing with violent inmates, hostage taking and inmates with mental problems. The training that he received was Imostly concerned with providing instruction in policies and procedures If he notes that a particular inmate is' agitated or angry, he will take that inmate aside and attempt to deal with the matter His years of experience assist him in that respect, and he can handle most of the problems which I - arise If a whole range is agitated and angry, he would notify the Shift lie and would also advise the other correctional officers In either situation, his response is to become more alert and watchful He noted that the living areas adjacent to the cells were very narrow, and while he would be backed-up by a partner at the door when entering a unit, he would, once in \ that unit, have a high degree of inmate contact. Correctional officers enter the units every hour during the day, and these , tours involve considerable inmate contact given the narrowness of the \ ) ;,,' ) ~ ) ~ 9 ~ , living space Most of these tours are performed in a matter of minutes, and , the rest of the time is spent outside of the unit looking in He agreed that so-metimes a large number of inmates will not cause any problems while on - other occasions a smaller number of inmates will cause problems However, he emphasized that the potential for disruption was greatly increased when there were thirteen or fourteen inmates in a unit built to house eight prisoners Inmates begin to act up, and it is difficult to maintain control. He agreed that the inmates, in these circumstances, would still obey orders such as to return to their cells. Overcrowding also caused other difficulties such as restricting the ability of the correctional officers to effectively separate inmates It is general practice to keep similar types of inmates together, but when the institution is overcrowded this cannot occur For example, if the Jail is overcrowded it is not possible to keep the intermittent inmates together in one unit and the weak inmates together in, another unit. Mr Stewart testified that it was far less common for a weak inmate to lose his meal when the Jail was not overcrowded because the weak inmates can be grouped together in one unit, and, in any event, because the correctional officers are in a better - position to observe what was going on. Mr Stewart again noted that there are only a limited number of tables and chairs in the living areas of the jail, and when it was overcrowded some inmates are required to sit on the ) floor to eat their meals This made it much more difficult for the correctional officers to observe what was occurring Mr Stewart agreed l: that only two of the four units could be overcrowded as there was no room in the units with single cells for additional mattresses on the floor or elsewhere The segregation cells, designed for -one prisoner, could also be overcrowded by an additional two mattresses being placed on the floor Mr I .\ r - ~. 10 Stewart could, however, recall instances when additional ;mattresses were placed on the floor in the adjacent living areas. " , \ Mr Stewart agreed that many of the day-to-day policies and procedures were set out in the standing orders, such as the searching of inmates and cells. He is of the view that the inmate count affects the marmer in which correctional officers go about running the Jail For instance, if the count is high the correctional officers will still follow the standing orders but will have to do so in a more cautious fashion. The number of searches may be increased, and additional staffing required in order to remove the inmates from the units so that the searches can be conducted effectively There , was, Mr Stewart agreed, no real difficulty in conducting night inspections in each of the four units because there was no real difference in looking for two in a cell or three The difficulty was in conducting inspections in the segregation cells when more than one inmate was present. Mr Stewart was asked a number of questions in this respect, and he agreed that there were three different vantage points to look into the cell. He insisted that he has, nevertheless, been required on occasion to open the cell door in order to ensure that all of the prisoners were present. In Mr Stewart's view, management agre~d, at the April 19,92 ERC meeting to make Unit Five available in cases of overcrowding Mr Stewart was also of the view that when correctional officers request that Unit Five be opened to relieve overcrowding that management should normally do so given Mr Campbell's December 1993 memorandum. Re-examination of Mr. Stewart In re-examination, Mr Stewart testified that management has never opened \ ~ ~ ) I 11 Unit Five to relieve against overcrowding despite having been requested to do so He also told the Board that when the segregation cells were full, correctional officers lose an important control measure, namely the ability I to put misbehaving inmates in segregation If the segregation cells were \ overcrowded this problem is exacerbated because at that point it becomes much more difficult to simply arrange a switch In general, misbehaving inmates are immediately removed to segregation, butJ this cannot be done if I the segtegation cells are already overcrowded \ Evidence of John Riendeau Mr Riendeau testified He is a correctional officer employed at the Jail and he is also president of the local. According to Mr Riendeau, he asked ) Superintendent Campbell to provide him with a definition of "extenuating circumstances" after receiving a copy of the December 1993 memorandum. Mr Riendeau testified that Superintendent Campbell would not commit himself In Mr Riendeau's opinion, segregation cells serve a number of important purposes They are used to house violent and misbehaving inmates They can also be used to house inmates with health and other problems If these cells are used for ordinary housing purposes then they are not available to be used for their primary purpose. Mr Riendeau testified that inmates quickly become aware that the segregation cells are full, land they mock the correctional officers saying things such as "what can you do about it, the - hole is full" This has a negative impact on all the correctional officers, and while inmates can still be put on misconduct, the effectiveness of that ( sanction is limited because the inmates cannot be immediately escorted to I one of the segregation cells. In Mr Riendeau's opinion, it is absolutely "' I '0 \ " ~ ( 12 I essential that the segregation cells be immediately available to serve their primary purpose The inability to use these cells has, Mr Riendeau believes, \ heightened the risk to his health and safety Mr Riendeau is also of the view that the closure of Unit Five has, in cases of overcrowding, raised the risk to his health and safety and that of other Jail employees. He told the Board about a number of instances that have occurred when the Jail was overcrowded. On one ocCasion an inmate held I his hand through the bars and another inmate jumped on it in order to break it. The first inmate apparently planned this scheme, Mr Riendeau later learned, in order to subsequently sue the Jail for injuries received as a result of the overcrowding Mr Riendeau testified that when the Jail is overcrowded the number of correctional officer-inmate contacts increase Not only is, there less room in the living areas, given their size and the number of inmates, there is also a greater need to increase the number of rounds Both factors raise the number of contacts. In preparation for this case, Mr Riendeau reviewed the Jail log arid determined the Unit Five is regularly used for A.A. meetings, inmate haircuts and other purposes. In Mr Riendeau's opinion, Unit Five could be used on many occasions without necessitating the calling in of additional staff He is, however, of the view that this unit should always be used to relieve overcrowding and to ensure that the segregation cells are used and available for segregation \ . - -- ~-- ----- - -_..._~ - 13 Cross-Examination of Mr. Riendeau In cross-examination Mr Riendeau testified that he believes that institutional overcrowding jeopardizes his health and safety He agreed~that inmates become unhappy about overcrowding, but noted that they were generally unhappy in any event. In his view, Unit Five was available and should be used when necessary Mr Riendeau agreed that female inmates are rarely in the Jail for mofe than one day, although he could recall one instance in which a female prisoner was held for five days Mr Riendeau agreed that the Jail generally attempts to transfer female inmates to Ottawa as quickly as possible If the jail is crowded, female inmates are placed in one of the two admitting/discharge cells, or in ~egregation Male inmates who are placed in segregation to relieve overcrowding are returned to living areas adjacent to the cells during the day with the result, Mr Riendeau testified, of further contributing to overcrowding in those living areas. And this, in turn, increases the health and safety risk because the I correctional officer must make more inspections of the living area because there are more inmates and more is going on Mr Riendeau Was asked a number of que~tions about the segregation cells. He agreed that there was room on the floor of each of th~se three cells for \ an additional bed. He did not agree that there was room on the floor for two additional beds The Employer's Case Evidence of P .H. Campbell Superintendent Campbell testified He has been the Superintendent of the I Jail for more than two years, and he has 26 years of experience in corrections He told the Board that prisoners arrive at the Jail 24 hours a \ 14 day, and that he must accept these prisoners unless he believes that a particular prisoner is not medically fit. All types of prisoners arrive at the Jail Superintendent Campbell described the employee complement and the general duties and .responsibilities of the correctional officers Various emergencies such as riots,) fire, suicides, hostage taking and fights can occur, and Superintendent Campbell testified that there are proceaures in place to deal with emergencies of this kind In 1993, because of provincial financial constraints, Superintendent \ Campbell was asked to review his funding and expenditures and it was decided to close Unit Five and eliminate one post. Superintendent Campbell testified that he would reopen Unit Five in a number of different circumstances For example, if the plumbing broke down on one of the other \ units, he would open Unit Five He would also open Unit Five if a large drug bust resulted in t~e arrival of a large number of prisoners. He emphasized, however, that the opening of Unit Five was not contingent on inmate counts, although the number of inmates would naturally be a factor In Superintendent Campbell's view, each case had to be decided on the basis of I its own merits and that is why he refused to indicate to Mr Riendeau exactly what he meant by "extenuating circumstances. " Superintendent Campbell does not believe that conditions at the Jail have been adversely affected by the closure of Unit Five The level of security has not been affected. Inmates sjtill receive a high degree of care and control And, in Superintendent Campbell's view, the health jand safety risk to correctional officers has not increased No unusual incident has been associated with the closure of Unit Five The number 6fassaults, he noted, has not increased, and Superintendent Campbell is also of the view that the \ , - ) ---~ - \ I 15 closure of this unit has nQt resulted in any increase in contraband being brought into the institution The risk of contraband being brought in was determined by the type of inmate not the number of inmates. That risk did not, in the Superintendent's view, warrant the re-opening of Unit Five Instead, any individual suspected of bringing in contraband is segregated in a cell without a toilet. There have been no instances of fires, hostage I I taking, riots, etc., since Unit Five was closed According to Superintendent Campbell, provincial bailiffs ate well aware of - the inmate capacity of the Jail, and he operates under the expectation that 1 these bailiffs will ensure that the inmate count does not e"ceed the established capacity of 37 inmates Unit Five was closed on September 6, 1993 Prior to that date the Jail's capacity was exceeded on a handful of occasions On those occasions, mattresses were put on the floors in some cells, in the segregation unit, in admitting/discharge, andorle time, three inmates were required to sleep in the lawyers' office After September 6, 1993, th'e capacity of the institution was reduced from 50 to 42 There were 37 regular peds and five special beds as already indicated On five occasions after September 6, 1993, inmate tount exceeded 42, and on those \ occasions additional mattresses were placed on the floors of the -~ segregation cells ,and the admitting/discharge cells. I ! I Female inmates are, Superintendent Campbell testified, rarely incarcerated "- at the Jail In general, they only stay for one night, and whEfn a female inmate has been brought to the Jail she is usually placed in one of the segregation cells or, if segregation is full, in one of the - admitting/ discharge cells. Superintendent Campbell agre'ed th~t if the \ institution is full it becomes more difficult to move inmates around, but \ - ----- -------- ----- 16 maintained, if there was a. prablem, that inmates cauld still be separated Crass-Examinatian af Superintendent Campbell In crass-examinatian Superintendent Campbell agreed that the aperatianal capacity af the Jail was, since September 6, 1993, 37 inmates. The I segregatian and admitting/discharge ceHs are known as "specific purpase beds. " Superintendent Campbell did nat agree that a jail must have a segregatian capacity, but he nated that mast Ontario. jails did hCive segregatian cells, althaugh thase cells cauld be IQcated in a regular carridar The purpase of segregatian units was to. pratect inmates, to. '..... isalate ill inmates and to. serve as a sanctian far inmate miscanduct. Superintendent Campbell agreed that if a female inmate was put in ane af the admitting/dis.charge cells, she wauld be in full view af any male affender who. was admitted ar discharged fram the institutian, nat to. mentian all af the co.rrectio.nal afficers She cauld, therefare, be seen using the tailet. Supe(intendent Campbell did nat agree that the mingling af the intermittent affenders with the regular affenders increased the risk af cantraband being bro.ught into. the institutian He did cancede, hawever, that ) there was a ppssibility that weekend visitars to. the institutian cauld be "strang armed" by the langer-term' residents into. attempting to. smuggle in drugs Ano as the presence af drugs in the Jail increased: the risk to. carrectianal afficers, this intermingling cauld, the Superintendent agreed, result in a greater health and safety risk. Superintendent Campbell also. agreed that it was impo.rtant to. ensure that inmates nat "take aver" any area af the Jail He did natagree, however, that avercrawding provided increased appartunities far inmates to. attempt to. ~ 17 take Qver a particular are~ of the Jail, as that could happen at any time What he would agree to was the proposition that the larger the number of inmates in a confined space the greater the likelihood of a need for correctional' officer intervention \ Prior to September 6, 1993, Unit Five was opened to alleviate overcrowding In general, it would be opened any time the inmate count exceeded 41 This figure was arrived at by making full use of tne four remaining units and the three segregation cells. The Jail did not double bunk at that time By September 1 993 fiscal reality had set in and it was necessary to cut back. That is why the decision was made to close Unit Five Superintendent Campbell agreed, if money was no object, that it would be better to have Unit Five open to relieve overcrowding then to double up in the segregation and other cells. I SuperintendentCampbelJ insisted that as the administrator of the Jail he retained the option to re-open Unit Five if circumstances required There was nothing in his December 1993 memorandum that restricted the use of U~it Five to particular circumstances. Superintendent CampbeU agreed that there was also nothing in that memorandum which, required the institution to use Unit Five for female offenders and segregation purposes In Superintendent CampbelJ's view, the segregation cells should not be kept J open if that results in inmates having to sleep on the floors What was important was that management be in a position to constantly assess the situation and to make appropriate judgements depending on the particular facts. Accordingly, there was nothing wrong with using Unit Five for - inmate haircuts during the day And even if no staffing costs would be incurred by opening up Unit Five, that would not necessarily result in ~ - 18 management deciding to open it up. / Superint~ndent Campbell was asked what degree of overcrowding he would" require before he 10rdered Unit Five reopened, but he declined to provide a spec.ific number Each case would, he insisted, have to be determined on its own particular facts. It was for this reason that he refused to define "extenuating circumstances. If Re-examination of Superintendent Campbell In re-examination Superintendent Campbell testified that inmates come to see their particular unit as their home, and do not react well to being moved around. That is one reason why he is reluctant to move inmates even in overcrowding situations. He also testified that it was not efficient to open Unit Five, and that ~as another reason why he might not open it jf the inmate count exceeded the normal maximum. The fact that there may Qccasionally be more inmates than beds was not necessarily, in his view, an ~ extenuating circumstance He also told the Board that in his experience the segregation cells were needed the most during the day, and as the inmates housed in those cells were moved to the living areas during the day the cells were effectively available for segregation purposes With respect to the weekend inmates, Superintendent Campbell testified that it is now his practice, even if the institution is nowhere near full, to distribute those inmates among the general population. He noted that it is always important to be on the look-out for drugs, and it was always important for the correctional officers to remain in control This was true - when Unit Five was operating and it continued to be true n~w that it was ~ closed Finally, Superintendent Campbell testified that no inmate would \ - 19 ever be left alone outside either of the admitting/discharge cells, and that if a female inmate was in one of those cells and was using the toilet, he would expect his staff to ensure that no inmat~ was able ~o watch while she was doing so The evidence having been completed, the matter turned to ~rgument. I Union Argument Union counsel began his submissions by noting that prior to September 6, 1993, management at the Jail would open Unit Five for four reasons: First, to avoid overcrowding Second, to ensure separate housing for weekend ~ inmates Third, to house female inmates And fourth, to eAsure that the segregation cells were available for segregation purposes In the union's submission, management has accordingly recognized, on more than one \ J occasion the necessity of avoiding overcrowding This recognition was ~ apparent in the Minutes of the April 1992 ERe meeting as well as in the Superintendent's March 23, 1993 memorandum stating that it would be permissible to open Unit Five when the physical count in the Jail was 41 or higher, or when it was necessary in order to house a female inmate and doing so would not result in any additional expen,se Both of these documents, the union argued, proved that the employer was aware of the serious problems caused by overcrowding j In the union's submission, keeping Unit Five closed, when all of the other - units were filled to capacity unnecessarily increased the health and safety risk faced by the grievors and other Jail employees. Given that Unit Five / could sometimes be opened without incurring any additional cost, it was, the union claimed, exceptionally arbitrary on the part of management to ~ I 20 ( keep it closed and arbitrariness was, the union asserted the exact antithesis of" the health and safety provision of the Collective Agreement. Article 18 1 provides that "The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agre~d 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." \... In the union's view it was quite extraordinary that Unit Five would be opened for haircuts and A.A. meetings, but not for the purpose of relieving overcrowding elsewhere in the facility, not to mention ensuring that the segregation .cells were available for use While it was true enough that the / employer is given the statutory right to determine complement, it was also - true that the employer's rights were restricted by Collective Agreement provisions such as Article 1 8 1, and these provisions required the employer to act in a reasonable way It was not reasonable, union counsel asserted, ~ for management to refuse to open Unit Five to relieve overcrowding, or to ensure the availability of segregation cells, or to provide a measure of privacy for female inmates, when it would cost nothing to do so While management claimed that it was reserving its rights to open Unit Five in an appropriate case, counsel took the position that the evidence established that there would never be such a case given the way the Superintendent's December 1993 memorandum was interpreted and applied. Very simply, in the union's submission, the evidence established that "- overcrowding increased the health and safety risk to employees. The increased risk was experienced every time ~orrectional officers had to enter an overcrowded unit. Moreover, one of the results of the \ - 21 overcrowding, the loss of the segregation cells also, on the evidence, negatively impacted the correctional officers as the inmates increased ~ their misbehaviour as soon as they learned that they could not be taken to segregation because segregation was full Counsel noted that the Standing Orders, Ministry Policies and Procedures and Ministry of Correctional Services Regulations, all of which were introduced into evidence, effectively assumed that each i~stitution would .... And counsel argued that the presence of have a segregation area segregation cells was absolutely essential both for the efficient running of' I the institution as well as to ensure employee health and safety In the union's submission it was well-established in the Board's jurisprudence that where health and safety is concerned, the interests of - the employer must be balanced .against those of the employee In Watts/King 1367/90 (Kaplan) the Board held: The employer has an obligation to take reasonable precalltions 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 employee and the employer (at 26) It was the union's submission that there was no balancing present in this case, and the proof of this submission could be found in management's refusal to relieve against overcrowding even where there was no cost involved in doing so Counsel argued that the union was ~ntitled to a declaration that Article 18 1 had been breached, and an order requiring the I employer to re-open Unit Five At the very least, the union submitted, the - --- --- -- '22 Board should require the employer to ensure that the segregatipn facilities / were reserved for their special purpose. Counsel asked the Board to remain seized with respect to the implementation of any award, I \ \ Employer Argument ~ In the employer's submission, the grievances before the Board resulted from a management decision to reorganize the workplace by closing one unit in order to achieve cost savings Health and safety was not at issue in this case, Mr Mously argued, and he also pointed out that since 'Unit Five was closed no Jail employee had been injured as a result. Moreover, in the employer's \submission, it was taking all reasonable measures necessary in order to ensure the health and safety of its employees He noted that no union complaints or grievances about the overcrowding were filed until the fall of 1993 and, in any event, that the institution had only been overcrowded on a handful of occasions in 1993, and had not been overcrowded since In Mr Mously's submission management was fully within its rights as set out in the Crown Employees Collective Bargaining Act to determine employee complement and to decide what areas of the workplace would and would not be used. While the employer does have obligations under Article 1 8 1 of the Collective Agreement, nothing in that provision entitles employees to exercise management rights. Furthermore, the employer \ argued, it was under no obligation whatsoever to provide anyone with a definition of "extenuating circumstances" The decision to close Unit Five was a management decision and so too would be any d'ecision to re-open it. I - --~----- - ------------ ~-------- 23 In the employer's view, the union was obliged, having filed a health. and safety grievance, to prove that the, overcrowding was resulting in a health and safety risk. In Union Grievance 826/88 (Kates), the Board held that it required "cogent, dispassionate and objective proof that an 'unnecessary' risk for extraneous and irrelevant considerations has indeed been assumedll (at 12) Mr Mously argued that there was no such evidence present in this case The employer did not suggest that an actual injury need occur in order for the union to prove its case Rather, what is required is some evidence indicating that employees have been required to assume an unnecessary risk, and that the harm associated with that risk was not speculative or remote Mr Mously noted that there was no evidence leading to the conclusion that correctional officers employed at the Pembroke Jail were in greater jeopardy after September 6, 1 993 then they were be'fore that , date He also observed that the evidence established that the occurrences of overcrowding were extremely rare and, in fact, have not been repeated since the instant grievances were filed, Mr -Mously referred to the evidence of Superintendent Campbell who testified that the -risk level had not increased since Unit Five was closed, \ and who also told the Board that there had also been no decrease in the level of care and control over the inmates. Mr Mously also pointed out that there was no evidence of any additional contraband being introduced into \ the jail, and noted that at all times since Unit Five was closed the inmates have remained on the right side of the bars. Furthermore, there was also no evidence of a correctional officer wishing to place an inmate in segregation but being unable to do so because those cells were full The only thing that , ~ ~ 24 '- had possibly changed was a slight increase in workload And this, Mr Mously argued, was not sufficient to establish that Article 1 8 1 of the I \ Collective Agreement had been breached. \ The evidence established, Mr Mously argued, that the employer had not acted in an arbitrary way The fact that Unit Five could in some circumstances be reopened w.ithout incurring additional staffing costs was neither here nor there insofar as health and safety was concerned. Mr Mously suggested that there was nothing inconsistent abo~t the employer arranging for inmate haircuts or A.A meetings in this section of the Jail. That too' had nothing to do with health and safety, and certainly did not constitute a violation of Article 18 1 Mr Mously also too~ the position that the pl~cement of female inmates had nothing to do with employe~ health and safety, and certainly did not come within the jurisdiction of this Board \ In conclusion, Mr Mously argued that it was not suf'ficient for the union to simply establish that on one or more occasions overcrowding had occurred I as proof of its case What the union. had to do, in the employer's view, was \ ) to go on and link that overcrowding to some increase in risk to employee health and safety The union had in this case, Mr Mously suggested, failed to discharge its burden There was no evidence of any incidents indicating an \ increase in the level of risk, and there was no evidence leading to the conclusion that there was a real possibility of such incidents occurring as a result of the employer's decision to close Unit five And for aU of these reasons the employer asked that all of the grievances be dismissed ( - -- -, ~ 25 Union Reply In reply, union counsel argued that the evidence established that the employer was aware that overcrowdi,ng caused problems, and that is why it effectively provided, prior to September 6, 1993, for Unit Five to be used in order to alleviate this problem. Union counsel urged the Board to prefer the evidence of the tWo union witnesses who served on the frontline and who were in the best position to report on increases in risk to their health and safety when the jail was overcrowded. These two witnesses testified to the increased risk they perceived, and the evidence of Superintendent Campbell did not in any way undermine this testimony Very simply, counsel argued, the union had established that an overcrowded jail increased the grievors' sense of risk, and, in a more tangible sense, seriously undermjned their ability to function, and to .ensure a health and safe workplace, by preventing them from making use of the segregation cells Accordingly, union counsel again asked that the grievances be upheld. - Decision Having carefully considered the evidence and arguments of the parties, and having had an opportunity to visit the Jail and observe first hand the conditions in which these employees work, we are of the view that the grievances should succeed There is really no dispute about the legal standard to be applied Article 1 8 1 requires the employer to take reasonable precautions for the health and safety of its employees. No workplace is perfectly ~afe, and for obvious reasons a correctional institution is less safe than many Some _ risk is an obvious part of the job. And under Article 18 1 the grieving party bears the burden of proving that the risk imposed Ls unnecessary or , i . It " 26 "- excessive While the Board does not require proof of actual' harm. before finding that a health and safety grievance succeeds, it does require cogent, dispassionate and objective proof of a real possibWty of harm. We find, in this case, that the union has, to the extent indicated below, discharged this evidentiary burden In our view, this grievance succee<;fs for one simple reason This is an old I prison. Inmates are housed in living areas adjacent to the cells for the greater part of each day Compared to other institutions, these living areas j are extremely narrow and confined There are insufficient tables ~nd chairs The evidence establishes that the inmates become agitated and f frustrated when they are overcrowded. The evidence also establishes that ;; r-' the inmates attempt to take their frustrations out against each other and against the correctional officers. The inmates quickly learn when the ~ segregation cells are full, and this in turn leads to an increase in inmate \ misbehaviour In these circumstances it is absolutely essential that at least one segregation cell, whenever the Jail is overcrowded, be available. ~for use Obviously, management is well within its rights to manage this institution and to determine employee complement. And management must have the flexibility to constantly monitor and assess the situation, and in that I context make appropriate judgements based on particular facts. There is, we agree, no magic in inmate counts Presumably, in some situations the employer may decide to reopen Unit Five and disperse prisoners even if the Jail is below capacity The job of management, quite properly, is to manage. However, management rights must be balanced against employee ( entitlement to a healthy and safe workplace - . ~ 27 In this case, the evidence satisfies us that that the proper balancing of interests requires that at least one segregation cell be available for immediate use by correctional officers for segregation p~rposes whenever the Jail exceeds its established capacity of 42 inmates The MiniStry of Correctional Services Regulations, Ministry policies and Pembroke Jail standing orders all contemplate that segregation cells vyill be available for segregation purposes There was no dispute in the evidence that these cells are an important instrument for maintaining order in the institution, and that the need to maintain order becomes particularly acute when the Jail is overcrowded In our view~_ maintaming order in the institution is intimately related to ensuring a safe and healthy workplace That being said, we declare that Article 1 8 1 of the CollectIVe Agreement has been breached, and in order to remedy that breach we require that at least one segregation - cell always be kept available for segregation purposes whenever the population in the Jail exceeds 42 This order represents an extremely limited incursion into management's right to run the Jail given the fact that the occasions on which the Jail is overcrowded are few and far between ) This order, very simply, seeks to balance management's interests with those of these grievors ~nd other employees, and it does so by ensuring that an important instrument of inmate control remains available and accessible when, the evidence establishes, it is needed the most; namely, when the Jail is overcrowded ) One final observation is in order Having visitec! the Jail and seen the " location and construction of the two Admitting/Discharge cells, it is quite inappropriate, in our view, that these ceJlsare used to house female 1 prisoners. They provide no privacy whatsoever, and any female prisoner \ ~ .; ~ 28 I \ I incarcerated in these cells would be completely visible to everyone entering and leaving the prison part of _the institution Obviously, the treatment of female prisoners is beyond our jurisdiction, and the evidence ) establishes that they, are only rarely incarcerated in this Jail However, it I would seem to us that some better provision could be made to ensure their privacy, particularly in respect of their use of the toilet. ( DATED at if oronto this <)th day of September, 1994. \ 2l21__D.7~~ M O'Toole Member \ . I I~ \ I I I I