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HomeMy WebLinkAbout1992-0352.MacPhee et al.93-01-06 (11 - ONTARIO EMPLOYES DE LA COURONNE ; CROWN EMPLOYEES DEL '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 /TELfECOPIE (416) 326-/396 352/92, 315/92, 355/92 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (MacPhee et al) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE W. Kaplan Vice-Chairperson P. Klym Member J. Campbell Member FOR THE M. McFadden GRIEVOR Counsel Koskie & Minksy Barristers & Solicitors FOR THE J. Ravenscroft EMPLOYER Grievance Officer Ministry of Correctional Services HEARING November 20, 1992 , I 2 ~ Introduction '. ~ Shelly MacPhee, Paula Wilson and Craig Hillen are correctional officers working at the Maplehurst Detention Centre On October 21, 1992, they each filed identical grievances These grievances allege that the Ministry of Correctional Services has violated the health and safety provision of the Collective Agreement. The three grievances were consolidated and proceeded to a hearing in Toronto The Maplehurst Detention Centre ("the Centre") is a maximum security institution On October 3, 1991, the three grievors were working the 7 00 p.m. to 700 a m shift, known as the B shift. The A shift works between 700 a m. and 700 p.m, while the C shift works 11 00 a.m. to 11 00 p.m. Normally, there are eight correctional officers employed on the B shift. On October 3, 1991, there were only six correctional officers on duty on this shift. It is this undermanning that the union claims is a violation of Article 1 8 1 of the Collective Agreement, which provides, in part: "The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment." For its part, the employer concedes that the normal B shift complement is eight correctional officers, but states that staffing that shift on one occasion with six correctional officers did not constitute a violation of the Collective Agreement. In the employer's submission, all that occurred was some minor inconvenience to the correctional officers on duty on that one shift. Much of the evidence is not in dispute The Evidence Craig Hillen testified Mr Hillen is a Correctional Officer 2 and has worked at the Centre since July 1991 The Centre is a new facility, and inmates began to arrive at the end of August and beginning of September 1 991 There are approximately 272 inmates incarcerated at the Centre, and they - --- - -- -- - - - - i 3 . are housed in three different units Unit one contains 52 inmate beds, two '. protective custody cells, and twelve segregation cells There is a secure sub-control module in the unit, from which correctional officers control the cells and adjacent day rooms. Units two and three are identical. In each of these units there are four separate living areas, each of which houses 26 inmates. The total population for each of these units is 1 04 There is also a sub-control module in each of these units. There is a main control module that controls the entire institution Mr Hillen testified that the regular staff complement for the B shift is eight correctional officers. One officer is posted in each of the sub-control modules, and another officer is assigned to the unit floor In addition, two officers are posted to the main control module Mr Hillen described the duties and responsibilities of officers assigned to the B shift. Officers assigned to each of the units must maintain security in those units. According to Mr Hillen, one of the two officers remains in the sub-control module at all times, while the other, the Floor Officer, performs regular patrols of the cell block, counts inmates, and does the electronic clock watch. If there is an emergency in one of the units, the Floor Officer is first to respond One of the officers in the main control module is in charge of access to the entire institution, and has responsibility for communications within and outside the institution, inmate counts, and general institutional security In addition to the three units, there is an Admissions and Discharge Area, a health care unit, a programs area and a staff lounge These areas are not occupied after 11 00 pm., although they are still patrolled with the electronic clocks, and it is the second officer assigned to the main control module, the General Duty Officer, who is responsible for performing these patrols. At the time of these grievances, the staff lounge was not 4 ~. operational . . Mr Hillen testified that on October 3, 1991, there were only six officers on duty on the B shift. One officer was in the main control module, two officers were in unit 1, one officer was in unit 2, and two officers were in unit 3 The Floor Officer in unit 3 was also required to do the patrols in unit 2 Mr Hillen testified that the staffing shortage also resulted in some of the patrols normally assigned to the General Duty Officer being canceled In that regard, Mr Hillen testified that while there is a camera hooked to the main control module, in Admissions and Discharge, that camera is stationary and does not provide full viewing of that area. In Mr Hillen's view, the staffing shortage had a direct impact on security by creating a safety threat to correctional officers on duty For example, if there were a fire, riot or some other disturbance there would be fewer correctional officers available to respond, thus increasing the risk to those who were able to respond While there have been no escapes from the Centre to date, that potential also exists, and Mr Hillen noted that there have been false alarm codes on the night shift. In addition to the possibility of these occurrences, Mr Hillen testified that inmate suicides and suicide attempts would require the immediate response of correctional officers. If an inmate did attempt to commit suicide, one correctional officer would have to ride with him to the hospital, further diminishing the complement of officers on duty If inmates were fighting in their cells, and some of the cells have three inmates in them, at least four correctional officers would have to respond in order to quell the disturbance, as well as the unit manager who must give the okay to open a cell door Problems may also occur if there is a blackout. Mr Hillen told the Board that some of the inmates have been charged with serious offenses including murder and sexual assault, and that some inmates have psychiatric problems. These , 5 (- inmates are usually housed in either protective custody or segregation In general, correctional officers working the night shift have two rest breaks of approximately fifteen minutes each They also have a thirty-minute meal break. On October 3, 1991, Mr Hillen did not receive either of his breaks, or his meal period. Instead of eating in the program area, he ate on the unit, and he ate part of a pizza supplied by one of the managers In cross-examination, Mr Hillen testified that the clock rounds take between 5 to 6 and 10 to 12 minutes to complete. The Floor Officer is let into the living area of the unit and can observe into the cells. He or she will walk the entire length of the unit and do the electronic clock watch After completing this task, the Floor Officer, as well as the officer assigned to the sub-module, will do paperwork, register inmate requests and perform other related tasks Mr Hillen was asked some questions about the responsibilities of the officer assigned to the sub-module, and he testified that it was his understanding that that officer was not allowed, in any circumstances, to leave the module Mr Hillen was asked some questions about the security and other risks he testified to in chief In his view, there was always the possibility of an escape attempt, and while there has not yet been an escape from the Centre, he noted that the inmates are aware that there are fewer correctional officers on duty at night thus increasing the chances of an escape attempt at that time. Mr Hillen agreed that on October 3, 1991, the unit manager's office was located in the health care/programs area, but he did not agree that this necessarily meant that the unit manager patrolled that area Mr Hiilen agreed that the walls of the cells were not exterior walls, and that <t' an inmate escaping would have to go out through his cell bars into the 6 ~ locked living area Mr Hillen agreed that riots were more likely during the t day than at night, but he told the Board that some inmates light things on fire and throw them into the corridor Each of the cells has a fire alarm monitor connected to the sub-module Each of the correctional officers carries a radio, and there are alarm buttons along the various unit corridors. Mr Hillen told one of the managers on duty on October 3, 1991 that he thought that his health and safety were jeopardized as a result of the reduction in staffing Paula Wilson also testified on behalf of the union Ms Wilson is a Correctional Officer 2 and union steward Ms Wilson testified generally about how the employee complements for each of the shifts were established, and in particular that the eight-person correctional officer complement for the B shift was established by the Deputy Superintendent. On October 3, 1991, Ms Wilson was assigned to the main control module, and experienced some difficulties arising out of the reduced staffing She did not receive washroom breaks when she required them because there was no immediate relief available One of the supervisors on duty could not relieve her because he was busy at the time in question with one or more late admissions It is Ms Wilson's understanding that correctional officers assigned to the sub-modules cannot leave them at any time. In cross-examination, Ms. Wilson was asked a number of questions about the responsibilities of the correctional officer assigned to the sub-module, and she rejected the suggestion that that officer could leave the module and walk down the corridor and still be considered to be at his or her post. It is her understanding that an officer would be subject to discipline for leaving his or her post. ~ I ~. 7 Mike Mousley testified on behalf of the employer He was the shift 'I supervisor on duty on October 3, 1991 He testified that he started work that evening at 6 00 p.m. and worked through till 6 00 the following morning On the night shift, Mr Mousley exercises all of the duties and responsibilities of the superintendent. He supervises one unit manager and the correctional officers He makes all the decisions with respect to staffing, such as calling in employees on overtime, and ordering employees to accept mandatory overtime. He inspects the entire institution at least twice per shift,and is the person in charge in the case of an emergency Depending on the nature of the emergency, the unit manager would normally respond first, but Mr Mousley would be involved in any serious matter that a rose Mr Mousley testified about the design of the three units Each unit is built around a long corridor, which is split into four quarters or wings Each quarter has 1 3 cells and a washroom area Outside each quarter is a day area with a television set. One can see into each quarter from the corridor through windows running the length of the corridor While walking down the corridor, one can see into cells and the washroom area, although at night vision is not perfect and there are parts of the cell that the correctional officer would not be able to see The sub-module is designed and positioned in such a way so as to allow the correctional officers in it to see into each quarter Mr Mousley's understanding of staff duties varied slightly from that of Mr Hillen Instead of there being two officers assigned to the main module, Mr Mousley testified that the General Duty Officer was assigned to unit 1 Mr Mousley testified about the reduction in staffing on October 3, 1991 He told the Board that when he arrived at work he learned that the full complement of correctional officers was not available for the B shift. 8 ~ There were a number of reasons for this One correctional officer 's telephoned in sick at 5 00 pm. When Mr Mousley arrived at work no arrangements had been made to replace him. Two officers were assigned to hospital duty In the result, instead of having eight officers available, Mr Mousley had five Accordingly, he began to call officers offering overtime He was able to secure a sixth officer by doing so However, Mr Mousley experienced considerable difficulties in attracting two more officers to the shift, and he explained that this was in part due to the schedule All employees work a twelve-hour shift. October 3, 1991 was a Thursday, and employees working on Thursdays begin their days off the next day Other employees start a new shift cycle on the Friday Many of the employees working on October 3rd, had already performed some overtime and so were not available for a further overtime assignment. Meanwhile the employees scheduled to come in on the Friday could not be called in for overtime because to do so would be to effectively extend their shift beyond the permissible number of hours. Mr Mousley testified that while it is possible to order a correctional officer to perform overtime, that power should be used only when necessary, and in his view this was not a .case where the needs of the employees or the institutions demanded resort to that authority Mr Mousley assigned officers as described by Mr Hillen The effect of this was that one of the Floor Officers was required to patrol two units instead of the usual one. That officer, Mr Mousley noted, did not grieve Mr Mousley also canceled some of the rounds normally performed by the General Duty Officer Mr Mousley testified about activities in the centre on October 3, 1991, and the long and the short of his evidence was that despite a delay in the assignment of medications by nursing staff, and a clerical error causing -? 9 I confusion in the inmate count, the shift was uneventful Mr Mousley ri' testified that he did not receive any complaints about the staffing, and felt that the reaction of correctional officers to the reduction was generally positive Mr Mousley testified that it was his judgement that there was a sufficient staff complement on duty to handle any emergency, and he noted that both he and the unit manager were available to respond to assist correctional officers. Mr Mousley was of the view that the presence of two additional correctional officers would not likely have made any difference in the case of an emergency He could not think of a situation occurring at night where it would' be safe to expose six correctional officers but not four correctional officers. He also noted that in the case of an emergency, he could have called for reinforcements from the adjacent correctional facility, which was linked physically to the Centre In the case of less serious incidents, such as an inmate setting something in his cell on fire, the institutional response would depend on the nature of the threat. If it were not safe to open the cell and remove the inmate(s), the fire could be fought with an extinguisher through the cell bars According to Mr Mousley, he and the other correctional officers would make judgement calls about hpw to respond, and not only were there a variety of available responses, staff could also be equipped with helmets, shields and other equipment if necessary Mr Mousley testified that he anticipated paying correctional officers on duty on October 3, 1991 overtime for their missed breaks and meal period, and he also told the Board that the officer assigned to the sub-module can leave that module and still be within his or her assigned station In his view, an officer assigned to a sub-module should investigate in the outside 10 " corridor if he or she finds something to be suspicious. Mr Mousley testified \ that it was his opinion that the possibility of a riot or escape during the B shift is next to nil He noted that the only place an inmate could escape to was the day room area Even if he or she made it to the exterior corridor, he or she would still have to pass by the sub-control module, then go through sally ports to the main module The chances of all of this taking place were, in his opinion, extremely remote. At the conclusion of his shift, Mr Mousley wrote a report to the superintendent of the Centre, which was introduced into evidence This report states that the shift on October 3, 1991 should have been the usual eight, plus two o~ficers on hospital duty plus one additional officer to \ maintain ten-minute suicide watches for three late admissions. The report describes Mr Mousley's attempts to secure additional staff Mr Mousley testified that even though he was understaffed, he was able to maintain security and perform the ten-minute suicide watches. Upon completing his report, Mr Mousley met with the superintendent, and the result of this meeting was a decision that henceforth supervisors at the Centre would not be limited to calling on Centre employees for overtime shifts. The pool of potential overtime workers was expanded to include the pool of approximately 250 correctional officers working at the correctional facility next door Previously the two institutions had been treated separately for overtime and other personnel purposes. In cross-examination, Mr Mousley agreed that by 6 30 p.m. on October 3, 1991 he was aware that there only be six correctional officers assigned to the Centre for the B shift. He testified that he called approximately ten to fifteen persons for overtime work, but could only find one In October 1 991 there were approximately 70 full-time employees and ten casuals. There were fifteen employees assigned to the A shift, 8 to the B shift and 6 to the ~ 11 C shift, for a total of 29 employees. The next day another 29 persons were 1 assigned to work. Accordingly, there were, in theory, some 22 correctional f officers available to work overtime, and Mr Mousley was asked why he did not try to reach all of them. He replied that some of them were sick, and some were on scheduled lieu days. He testified that he believes he tried to call everyone who was available Mr Mousley was also asked why he did not require some of the employees on the C shift to work mandatory overtime In a few cases, these employees were already on overtime and had reached their limit. In other cases, the limit would have been reached half-way through the B shift. Mr Mousley- agreed that this would have been a partial solution. He did not investigate bringing in employees from the correctional facility because at the time in question this was not an available option. With respect to assignments to the sub-modules, Mr Mousley maintained that there was nothing in the standing orders stating that a correctional officer could not leave the module. Mr Mousley testified that officers in the modules could see all around the module, but could not tell if, for example, an inmate was hiding in a garbage can Mr Mousley agreed that it was possible that an inmate might attempt to escape, and a fire in one of the cells or elsewhere was also possible He testified that inmate fights are infrequent, and that while there have been delays in activating the generator when blackouts have occurred, those delays have been in the magnitude of seconds, not minutes Mr Mousley agreed that it would have been preferable to have had more staff, but that on October 3, 1991, any shortfall in staffing could and was made up for by him and the other supervisor officer on duty While Mr Mousley agreed that the normal complement was eight correctional officers (and two supervisors), he did not agree that to drop below the normal --- - 12 r; complement meant dropping below a safe complement. In his view, all that 'f took place on October 3, 1991, was the suspension of some general duty clock rounds and some difficulty with respect to breaks. I In re-examination, Mr Mousley testified that the chances of an inmate breaking out at night were extremely remote. To make his way to the sub-module, an inmate would have to break through his cell door, and then break through the sally port between the day room and the outside corridor It was most unlikely, in his opinion, that the officer in the module would not see what was going on, and he or she could take immediate steps to secure the wing and tall for reinforcements. He also testified that while the correctional facility was, at the time of the grievance, treated separately for general staffing purposes, it has always been the case that one institution can call on the other in the case of an emergency There was no such emergency on October 3, 1991, and Mr Mousley testified that there was also no additional health and safety risk. Union Argument Union counsel referred the Board to Union Grievance 1190/89 (Stewart) and to the proposition that to maintain a health and safety grievance the union need not show that actual harm has occurred; all it must demonstrate is the potential for such harm. According to counsel, the evidence demonstrated that the employer did not make adequate efforts to staff the B shift, and he pointed out that the employer could have achieved a partial solution, but chose not to That is to say, the potential existed to staff the shift with the normal complement for at least part of the time. The employer failed to do so, and on that basis alone counsel argued that the grievance should be upheld -- 13 In counsel's submission, if one of the incidents described in the evidence in t chief had occurred, the consequences could have. been disastrous. Counsel argued that the conclusion was inescapable that if there were two fewer persons available to respond to an emergency, the risk to others had to increase. Counsel conceded that the job was inherently risky, but argued that this imposed an obligation on the employer to ensure that there was no extraneous and unnecessary risk. Counsel further observed that the evidence of Ms. Wilson established a health risk caused by the understaffing Counsel requested an order directing the employer to maintain the staff complement at eight, or in the alternative a declaration of the breach That part of the grievance requesting compensation. for stress was abandoned Employer Argument Employer counsel argued that the union has failed to discharge its onus of proof, and asked that the three grievances be dismissed In counsel's submission, there was no evidence of any real or potential serious risk to the grievors caused by the understaffing on October 3, 1991 Counsel cited a number of cases to the Board including Brlek 1466/87 (Dissanayake) This case stands for the proposition, according to counsel, that to meet its obligations under the Collective Agreement, the employer need not take every precaution against risk, but "reasonable" precautions. The employer had, in counsel's submission, discharged this obligation Counsel also cited Union Grievance 826/88 (Kates) for this proposition, as well as for the principle that the standard of review in cases of this kind is whether the employer has caused an unnecessary or unacceptable risk. At page 1 2 of Union Grievance the Board notes: " we require cogent, dispassionate and objective proof that an 'unnecessary' risk for extraneous . and irrelevant considerations has indeed been assumed" Counsel argued 14 t~ that there was no such evidence in this case, and she also referred the t Board to other authorities and to the proposition that there will always be ways of improving safety, but that does not necessarily lead to the conclusion that the Collective Agreement has been breached In reviewing the various authorities, counsel distinguished a number of them on their facts, and pointed out that there was no evidence in the instant case of any additional threat to the grievors. In counsel's view, the evidence in these proceedings was about inconvenience and about workload It was not about health and safety, and counsel suggested that the various union hypotheticals about potential risk were, in general, extremely remote On October 3, 1991, the inmates were locked in their cells, another locked door separated them from the correctional officers, reinforcements were nearby and there was no increased threat to their health or safety In counsel's view, the employer acted reasonably and properly throughout, and Mr Mousley made a rational decision, in the circumstances of this case, not to require mandatory overtime because there was no health and safety risk. Counsel asked that the grievances be dismissed, and suggested that if they were upheld the Board should reconvene, if necessary, to hear evidence on its jurisdiction to make complement orders. Union Reply In reply, union counsel agreed that the union case was based on hypothetical situations, but argued that did not make the union concerns any less real In counsel's submission, the usual, and safe, complement was eight correctional officers If that complement went down it only made sense that the risk to those correctional officers on duty would increase I -, 15 < Decision l' Having carefully considered the evidence and arguments of the parties, we have concluded that the grievances should be dismissed. We agree fully with union counsel that to discharge its obligation, the union need not demonstrate actual harm, but need only prove that potential for such harm exists. In our view, the union has, on the facts of this case, failed to discharge its evidentiary burden While it is conceivable that some, or indeed all, of the incidents and scenarios described in the union's evidence could come to pass, we are satisfied that the likelihood of this happening is remote Moreover, there is no evidence in this case that the reduction in staffing created either additional or unnecessary risk even if one of the hypothetical incidents suggested by the union had come to pass. The matter to be determined in this case, and we note that the results in all of the cases referred to us rely heavily on their particular facts, is whether the employer made objectively reasonable provisions for the health and safety of the grievors We find that it did, and that the concerns that were raised relate more to staffing than to health and safety We simply do not find any increased risk resulting from this one-time event. The evidence clearly demonstrates that the employer adequately balanced the health and I safety of its employees with its responsibility for the care and custody of the inmates. The employer also recognized that the employee's workload was increased, and took appropriate steps to ensure that there was no reoccurrence Accordingly, and for the foregoing reasons, the grievances are dismissed ~ 16 I'?- ~ -- That being the case, it is not necessary to deal with the jurisdictional I , '> question and the Board's authority to make orders affecting employee complement. DATED at Toronto this 6th day of Janua ry. tQQ3. /Iv I~ ----------- William Kaplan rl~/- Kly Member , rL ~ .j/ [,l/f\. ..' ..y[ I ~ Campbell . .ember , ~ - -