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HomeMy WebLinkAbout1982-0065.Warner.82-10-13Retxe6n: OPSEU (xr. Jotin Ksrner) Griever - And - The Crown in Ri,-ht of O?tario (iG.r.istry of Ccrroctional~ Services) Eii.Diover Before: -- 3. ;. Roberts - L'ice Ckair:nan 1. J. Thonson - Pien?ber A. Roberts - Xember r For the Griever: P. ;. J. ,Cavalluz%o, Cz.lncel Golden, Levinson Sarristers & Colicito:-s For the Enployer: J. v. Nhibbs Regional ?ersonnFL 2kministrator Ferscnnel 3ranch Ministry 0: Correctional Sezxices ?iearincJ: Septenbzr i, 1,132 - 2 - , I -- \ This is a scheduling grievance. At the hearing, the Union made essentially 3 attacks upon a scheduling practise which currently is being followed at the Millbrook Correctional Centre, which is the Province's maximum security institution. First, the Union contended that the scheduling practise of the Employer at this institution constituted a'violation of A:ticles 7.2 and 8 of the collective agree- ment because it required employees to work more than five - 8 hcur days in a row before having scheduled time off. Secondly, the Union argued thatevenifthe foregoing provisions of the collectiveagreementdidnotlimitthe scheduling practise of the Employer which is in question, the Employer's 'common law duty to p?ovide a safe working environment did. In this regard, the Union essentially contended that the scheduling practise at issue violated this co.mm.on law duty because under it, an employee could be scheduled to work uo to 10 consecutive days without a break, tnereby increasing his internal level of stress and decreasing his efficiency beyond safe limits. Thirdly, the Union contended that in any.e':ent, the specific work schedule which gave rise to this qrie'J?.rICa =P f . violated the.Zaployer's common law duty to prov~ce a safe . \ work environment because under it, the Gievor was, in fact, required'to work 9 consecutive days without a break. This undoubtedly 'created in the grievor, the.Union contended, an unacceptable level of stress which might have placed his safety and that of his co-workers in jeopardy. The Employer responded to the contentions of the Union-in the.following manner: As to the first ground, the Employer referred to several cases tending to indicate that other panels of the Grievance Settlement aoard did not regard the scheduling practise at issue to constitute a violation of the asserted provisions of the collective agreement. As to the se&&nd ground urged by the Union, the zn?loyer responded that there was insufficient evidence before the Board upon which to base any conclusion regarding the scope,of the Employer's duty to provide a safe work environment and whether the schedule at issue had the potential to create in an employee an unsafe level of stress. As to the third ground, the Employer asserted that there was no evidence that t:he safety of the envircnzent 0 .r~’ - $ - was in any way affected when the griever was required 50 work for 9 consecutive days without a break. The Emplo:/er also jointed to evidence that it %as hiqhly unusual undLr I _- the schedule at issue for an employee to be required to work this ma,ny consecutive,days. The Employer noted that the grievox was required to work on .9 consecutive days only because the Employer rearranged some of its per- sonnel on the schedule in an effort to provide a safer working environment at Millbrook. c Upon due consideration of the evidence and argument of the parties, we conclude that the grievance must be dismissed. We find that there was no violation of the collective agreement. Further, we do not have sufficient evidence before us upon which to base any conclusion Cat the scheduling practise at issue violated any common, law duty of,the Employer to provide a safe working en- vironment. Finaliy, we cannot find on the evidence before us that the Employer violated any common law duty to provide a safe working environment when the griever was required to work 9 consecutive shifts without a break. Our reasons for reaching these conclusionswill become more apparent from the following discussion. II The facts as we find them are as follows. Millbrook is the maximum security correctional facilit) * . - j - of the Rrovince of Ontario. In this faciiitli are co1 together all of those inmates who have ;3een sentenced some form of deviant behaviour and also those inmates leFted fo;, from other correctional facilities in the Rrovince who, for one reason or another, were deemed to be, too disruptive to be kept.in less secure surroundings. 3,ecause 'of the' type of inmate being housed at Millbrook, the Correctionai Officers at this facility view their main duty as being the en_forcement of security. The shift schedule in effect at Millbrook combines . rotating sh-ifts with fixed work weeks. .The way in which this schedule works was described in detail by this Roard in Re Jones and the Ministry of Correctional Services, G.S.S. Xo. 96/80 ,(November 2,. 1981, Jolliffe). Rssentially, each Correcti?onal Oz>ficer rotates through the day, arternoon, and evening shifts according to a master schedule which designates which shift the employee shall work on a particular day or whether the employee will have that day off. The shift schedule also indicates by means of a series of red lines that the work week is considered by the ImRloyer to begin on Sunday and end on the following Saturday. T5.e schedule is arranged so that from Sunday to Saturday of any work week, no Correctional Officer is scheduled to iicr:i more than 30 hours, i.e., five 8 hour days. ” 3 - - 6 - It is conceivable that by mani?ulatlng the days i to be~worked in each pre-determined work-week, the Employer could require ,an employee to work up to 10 consecutive days without a'break. For example, an employee might be scheduled to work on Tuesday, Nednesday, Thursday, Friday, and Saturday of one work week, and then be scheduled to work on Sunda-y, Xonday, Tuesday, Wednesday and Thursday of the following work week. In neither work week would the employee work on more than five days, i.e., five a-hour shifts, but the effect would be to require the employee.. to work for 10 consecutive days. This almost happened to the griever. In the work week running from October 11 to 17, the grievor worked from Tuesday to Saturday, for a total of five S-hour shifts. Tiicn, ix thy iol.lowi?g work week from October 18 - 24, 1981, the griever worked from Sunday to Wednesday, October 21, for a period of four 8-hour shifts. This made 9 consecutive days of work without a break. There seems to be no doubt that this was an unus-al occurrence. The evidence was undisputed at the hearing that in t:he usual course of~things, the Emplpyer schedules \ employees to work for no more than 6 consecutive days wit?!cut a break. This was demonstrated in the shift schedule fcr October, 19.81, !jhic!> was entered into evidence by the >, 5 Zmployer . This schedule indicates that no-Tall> Correctional Officers are assigned to numbered slots, each of which appears to provide for five to six conscc,utive days of wor:i followed by two to three consecutive Lays off. The reason why the grievor was forced to work on 9 consecutive days seems to be,that on October 19, 1981, the <rievor wasmoved from one slot on the schedule to - another. The 9 consecutive days were of a transitional nature. From then on, the grievor resumed the regular rotation described above. At the hearing, Mr. G.B. Preston, Deputy Superintendent ) at Millbrook,Correctional Centre, explained why it was i_-. necessary to move the griever from one slot to another at that particular time. It seems that in response to a dis- turbance at the institution in 1979 in which a number of staff were injured, management decided to'create a sufficient n‘mber of Institutional Crisis Interventlcn Teams (I.C.I.T. '551 to have at least twa of them on each shift. This rezuired considerable specialized training to be given to the Correctional Officers who were to be on the additional I.C.I.T.'s. After this training :gas completed in Septe:bee, 1991, it was necessary to shift some Correctional Officers from~their assigned slots in order to censure that each ,= shift would be served by two I.C.L.T.'s.. \ Xr. Preston testified ~that this program has been effective in increasing safety at the‘ins~titution. .Ee stated that the I.C.I.T. 's have been activated on several occasions. He related a particular instance in which the ~inmates in one wing refused to lock up and began to threaten the staff. An I.C.I.T. went into the wing in formation and the inmates surrendered i,mmediately. The disturbance was quelled. Mr. Preston indicated that without the organized intervention of an I.C.I.T., the disturbance might have degenerated into the same kind of situation in which several staff were injured in 1979. III As iddicate$, at the' outset of this Award, the Union on behalf of the grievor made several aiternative attaLcs upon the above-described scheduling ?ractise of the Employer. The first such attack was based upon an alleged contraventionof Articles 7.2 and 3 of the collective agreement. It does not seem to ;us to require considerable space to reject this >artiCUlar argument . It suffices to say that precisely the same argument was rejected by this 3oard in ?.e Jones, su?ra. In that case, the Vice-Chairman said, ":isre ice find that , - 9 - the work-week co.xmences on Silnciay and tnat em?loyee's, i as may be seen from Zxhibit 4, are not squired to wcrk ' more than five,consecutive days within the week from Sunday to Saturday inclusive. It is true that they often have to work six consecutive <ays, one or more in one work-week and five or less in another work-week, and while these may be consecutive and sometimes are consecutive, there is nothing in the collective aoreement or elsewhere to bar such an arrangement." (Emphasis supplied.) The'second contention of the Union focused upon the fact that in Xe Jones, above, the aoard did not. consider the precise issue of whether there existed sbmethiy outside of the collective, agreement that might, indeed, bar the Employer from engaging in the scheduling practise at issue. Counsel for the 'Inion asserted that the Cmployer's cornnon law duty to provide a safe working environmentdid constitute such a bar. The fact that the scheduling ?ractise at issue had the potential to require an employee to work 10 consecnti~:e days without a break, counsel submitted, constituted a s:ross violatic- of this duty. In s,uFsort of this submi.ssion, cornsel pointed to certain evidence given by :.!r. irsston on cross-examination that becai1se of the na?;rs of the inmate . 7 ” - 10 - population at Millbrook, the Correctional O:fic~ers there a would be sudject to more stress and te3Sion t:9ia2 c,~;ards ', at other place,s. Counsel also referred to the a02ird a research study on work stress in teachers and prison guards which, he submitted, substantiated hi-s claim that a work .schedule which had the potential to require Correctional Officers at Millbrook to work 10 consecutive days without a break constituted a violation of the Employer's common law duty to provide~a safe working environment. While we find counsel's submission thought Provoking, .we conclude that we mast reject it. In order to induce a panel of this aoard to accept such a contention, it would be necessary for the Union to provide a much more substantial foundation than the slender reeds upon which counse?'s arg?ent was built here. While it is true that Mr. Preston stated that the job of a Ccrrectional Officer at Millbrook might be more stressful than at ether institutions, he gave no indication that he thought the level of stress was so great as to create an unsafe situation if a Correctional Officer were required to war:? on 10 consecutive days. The research study submitted by counsel likewise was unhelpful upon the issue at hand. First, the study was not presented through any exPert witness who might then have been.subjected to crsss-esamina- tion. Secondly, the study did not relate to rhe priscn .- 11 - system in Ontario b,ut to what might be a snLstacti+llx,r ) _ . different prison system in California. :duch more substantial evidence than this would be essential to presentat,ion of a convincing case that a schedule having the potential to require a Correctional Officer in Miilbrook to work 10 consecutive days without a break must be barred because of violationof the Znoloyer's common law duty to provide a safe working' environment.. c This brings us to the final point urged by the Union, i.e., that the specific circumstancesbefore us, i.e., the fact that the grievor was required to pork for 9 consecutive days between October I3 and 21, 1981, constituted a violation of the Zsyloyer's common law dut;l to provide a safe working environment- There was no evidence at all to indicate that t%e safe?- of the environment at Nillbrook was affected when the grievor worked these consecutive days. The grievor did not testify t3 this effect. There were no factual stipulations to this effect. The nature of the grievance submitted by the griever dces not tiisclose any concern regarding safety. Indeee, z.;e crievance dces not,allege a safety violaticn. All that it requests is overtime pay or conscnsa:ory time off. :.:.creover , i r ;ias shown by the~Employer t:hat the griever was recuired to work 9 consecutive C.sys only 'beta-use oA -i an exceptional 5 9‘ . m ‘- ,' safer wor;iing environment for all staff.- -55s xa's tke .I placing of at +east two Institutional Crisis Intervention Teams upon each shi?t. The grievance is dismissed. DATED A? LONDON, Ontario this13th day of October 1982. _ .-.-.. R.J. Roberts, Vice-Chairman "I concur" .I. J. Thomson, Member II I concur"