Loading...
HomeMy WebLinkAbout1985-0335.Union.86-11-28IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT , Before GRIEVANCE SETTLEMENT BOARD Between : Before: OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Correct ion Services) R. J. Roberts L. Robbins L. Foreman Vice-Chairman Member Member Appearing for the Grievor: M. Farson, Counsel Cornish and Associates Barristers and Solicitors Appearing for the Employer: J. F. Benedict, . Staff Relations and Compensation Ministry of Correctional Services Hearing Dates: September 9, 1985; November 19, 1985: November 25, 1985; June 4, 1986. Employer AWARD ----- ..~ This is a grievance under Article Agreement, which reads as follows: 2. 18.1 of the Collective, ;::,., .,, ;; ': ; v- ,‘ *. The Guelph Correctional Centre is a six hundred-bed Institution for repeat offenders. The inmates in this facility serve an average sentence of ten to twelve months. They mainly range in age from nineteen to twenty-three, but can be as young as eighteen or as old as' sixty or seventy. The offenses for which they are sentenced can range from traffic offenses to manslaughter, so long.as the duration of the sentence is less than two years. I Guelph is classified as a medium security Institution. t provides a number of facilities ~for inmates, including industrial .’ 3. i- a shops, trades training, education and treatment. Each inmate is expected to have a job in one of these facilities. ,’ Job assignments are made by a Work Board comprising .~ : ~,...,~'-: the Senior Assistant Superintendent, Corrections; ::: ., Senior Assistanfj',i',. ;,;~:"~,~ .,q' ,.~., ,i Superintendent Industries or Programs; the Head Teacher; and a Classification Offic~er who acts as a resourse person. inmates who, ': Mr.-William. Taylor, inmate to be reassigned by request if he had shown at least ii .thirty days of good work habits. He also might be reassigned at the request of supervision if he was considered to be unsafe or displayed an improper attitude. Prior to November, 1984, inma$es who were assigned to work parties in the Industrial and Trades Training Shops were searched on a'random basis when re-entering the Institution at noon and at the end of the work day. These random searches were performed by Correctional Officers. The Industrial Officers t and Trades Trainers who were in charge of these work parties were not in any way involved. 4. i- a On November 6, 1984, however, things changed. In response to an apparent buildup of weapons in the possession of inmates, which were apparently manufactured in the Industrial and Trades Shops, it was decided to frisk search all inmates coming in from work parties at noon and quitting time. This ,I new responsibility was given to the Industrial Officers and .Trades Trainers who supervised the work. parties. In a directive Mr. T. A. Bolton, the Deputy Superintendent,. F;. y, :, instruction on the proper procedure for conducting:.! '1':"' At'the hearing, there was extensive testimony touching a,~ :' .. several matters which might, for security reasons, best be left t. unelucidated in this award. A suitable general summary of much of this evidence was provided by counsel for the Union in a document which was prepared for purposes of backgrounding an expert witness whom she called, Dr. Desmond P. Ellis, a Professor of Sociology at York ,University. -This document read as follows: Industrial Officers and Trade Trainers who are in charge.of inmates in the shops at the Guelph Correctional Centre are being required to search inmates on their ,return to the institution at noon hour and again in the afternoon. Not all the inmates they search are their own, but some of them are and others not currently in their shops might subsequently arrive there. : a 5. The shops operate during morning and afternoon " sessions Monday through Friday. The sessions go officially from 8:OO a.m. to 12:00 noon and from 1:00 p.m. to 5:00 p.m. In practice, however, fifteen minutes are lost at the beginning and end of each session. : The shops include trades training shops where inmates are trained in a particular skill, and industrial shops involved in production with production deadlines. Extensive evidence has been heard about one of each of these two kinds of shops - the woodworking production shop where picnic tables are made, and the welding trades training shop. One trades trainer is in charge of the welding: ~~:?.. : 'shop which has a maximum of eight inmates at one'time;.:~; with an average of six or seven present. locked in the shop and the key possession. There is one phone. that there is no vantage point be seen at one time by the that'~ there is no withifi the shop. The woodworking shop, also .called,the planing. ,,mill, covers ten to twelve acres and, unlike,.the.,..weld~~~~~,,ii:';r:.. I shop where people are locked inside, this is ai%$$ .,.:.~y’~: “,‘:..;;: shop where inmates have a free range of~movement'within" the overall area where they'are working during the day. There are three staff in charge of a maximum of fifteen or sixteen inmates, but an average of ten to twelve inmates on any given day. Not all inmates are visible to a member of the staff at all times and we have heard testimony,that the inmates could be in front, behind or anywhere around an industrial officer. They could also be a considerable distance away if, for example, they were moving items from one area to another. Inmates.have free range of movement within the area in which they are working and also have free access to equipment. There has been evidence from both an industrial officer and a trades trainer that if an inmate were suspected of. carrying a weapon, the trainer or offider would not search the inmate but would instead call security and a truck would come from the institution for the inmate. It would take the truck approximately 'ten minutes to get there and the inmate would then likely be searched eit,her in the truck or at the institution or both, but not by the industrial officers or trades trainers. 6. Dr. Ellis, who possessed considerable academic expertise on the subject of prison violence, testified that requiring Industrial Officers and'Trades Trainers to frisk search inmates i. placed them at greater risk than Correctional Officers. His opinion essentially was based upon two observations. The first ,I ,:: . .,,'.. was the undeniable fact that in the shops, there were no bars I.. ,p_, G',,,, p ~.~ ;,. .: '.i, . .._ '_ to' separate the in?ngtec ~from the Industrial Officer s and 'Tradeg?~;,I:j.~~!~~'r::t.r, ~: ?I, ,,~ .; ;; : ,,,L., ,;I .,.. 5! :,; ':c ,,... >',: ..~ ,._ i .~', Y~~~~~;$ .<,; ,, ,r~~..J, __.,.. .3~;T+yre., This carried with it a much greater potential, for '?& .;:+,.: " -,,, . ..!. ~>, ,~, " frisked by someone like an Industrial Officer or Trades Trainer,,:,: ', with whom they were supposed to have a trust-like relationship. c Dr-; Ellis described the hyprocrisy that might be seen as follows: "I trust you not to push me into one of the machines, but I don't trust you enough not to bring contraband into the prison." Dr. Ellis stated that feelings of hypocrisy are very troubling to inmates and generate hostility. . When these feelings are combined with th.e symbolic assault of a frisk search, Dr. Ellis stated, it 'increases the risk of a violent reaction from an inmate. It ( provides, he stated, a special rationale for prisoners to-reject their rejectors. n Such attitudes would, he added, increase the 7. i- * risk of hazard to Industrial Officer or Trades Trainer at work. The Union also raised as part of its case the. health hazards presented by the relatively recent arrival in North America of Acquired Inununed Deficiency Syndrome (Aids). The Ministry " it was suggested, violated Article 18.01 of the Collective ~Agree- ,': : an Aids carrier might be missed but doubted that such a person : could .infect a Correctional Officer performing a frisk search. i He agreed, however, that the risk of infection would rise if an Industrial Officer or Trades Trainer with an open wound on his hand were to perform such a search. He stated that not even a nick in a finger should be taken lightly, and added that if an employee had a cut on his hand, he should not be doing . a f-risk search. It was emphasised in the evidence on behalf of the Ministry that Industrial Officers and Trades Trainers could not be ( equated with foremen and instructors in private industry or educational institutions. It was pointed out that like , .:’ ‘I a 8. Correctional Officers,' these employees were responsible for the care, custody and supervision of inmates. In line with this, they received a Custodial Responsibility Allowance. Prior to being required to perform frisk searches, Mr. Taylor testified,. :’ ,,, was assaulted when he told an inmate he was putting him on ,a '. misconduct. He agreed that it could have been the misconduct which triggered the violent reaction of the inmate. Mr. Taylor also testified that Guelph was in the process of installing a new emergency alarm system in which it was hoped that eventually each staff member would carry on his or her belt a portable alarm.button. The alarm would ring in the tower to alert the tower staff to send assistance. , Finally, Mr. Taylor stated that instituting frisk ( searching of all inmates on work parties had a beneficial impact .’ 9. ,T . uponthe safety of the entire Institution. It was indicated that after November 6, 1984, there was a dramatic drop in the j number of weapons found in the possession of inmates. He testified,, .~' that between January and November;l984, 23 knives were found. .In the six-week period following that, 9 more were iocated. '. .', In the next ten months, only 3 knives were turned up. .A' ..,,. i ; The law relating to the application of Article 18,:lL, ~,,.:'!:YY. .';,',;':. :~ ,>"i?'. Collective Agreement -t-oYiie.aith-ahd safety issues was ,. ,.,' ,.I 'b:, ":-;:,;' ;;- I , " Article 18.01 was more than a mere declaration of intention,.~ that it "imposes an obligation on the employer." .& at p. t. 6. In the Samuels award, the nature of this obligation was expressed as follows: Article 18.1 speaks of "reasonable provisions" (emphasis added) for the safety and health of the employees. And this is echoed in section 14(2)(g) of the Occupational Health andSafety Act, which imposes a duty on an employer to "take every precaution reasonable in the circumstances for the protection of a worker” (again, emphasis added). There is no obligation to guarantee an employee's safety~against every possible risk, no matter how remote the possibility that it 'will occur. The collective agreement and the legislation contemplate "reasonable" precaution. . . . Id. at pp. 6-7. - It was concluded that Article 18.01 did not obligate the Ministry i : 10. I to guarantee an employee against risk of injury, no matter how remote, but only to take reasonable precautions for protection. What constituted a reasonable precaution, the Board added, had >.;~%~ to be assessed upon an objective review of the relevant circum- stances, which balanced "the safety of the employees against the need for care and custody of the inmates and the purposes I of the institution". Id. at pp. 7-8. - ,~’ ‘I y; ;:t ,: .:.t,..‘., ,~. : L I~ ‘L1 .‘I, .~.. .:;,, .’ Applying these criteria to the case at hand, we j 5$~fy',,, .i~ .:",:I~. :.:',. must reach the general conclusion that it did not violate Article~~?i~.,i;~; f, .;!T;;::;i; &!g -,y: :.; :' 18.1 r;~g$py > 2. a- of the Collective Agreement for the Ministry to require ,.,.~~~~-,~~::~~~~~ : $- ,_,.. ,.,i ,,, ;,";Y;.;&, T *:3* 1'; ."i Industrial Officers and Trades Trainers to frisk search. 'in;ii~'tes..,;-~:-:'.~~~';~, ~~~~*;,-:,;;;~,;~~~:',' The evidence left no doubt that after they were trained,. the-se _:i :., _ ,~$l"~, ,,,_, .*~ : p:1':11': +y::< ," _,.?, ". ;;;:?IT;,;~.:: ;_: y ': ,. ,. ": i. ,..' _ ':,:?:':A~ -.er&'.\,.. '1 .x; b.: .*<,, ; ': :'-employees were as capable of effectively performing a'frisk :. .-,'?!z';_':y ‘l;. ? :, c search as any Correctio~nal Officer. The need of the Ministry to provide for the secure care and custody of inmates required c that such searches be instituted. There had been a weapons buildup within the facility. There was a reasonable inference that many of these weapons were being fashioned in the shops. Something had to be done to interrupt the flow, and that "some- thing" was the routine frisk searching of,all inmates coming into the Institution from work gangs. .Moreover, it was reasonable for management to expect these frisk searches to be performed by Industrial Officers ( and Trades Trainers. As a necessary part of custodial respon- sibilities, it was within the scope of the jobs of these employees. . _. 7, ‘. i ” ‘. , i- - 11. The Industrial Officers and Trades Trainers were on the spot at the appropriate times by virtue of their positions as supervisors 'of the work gangs. Moreover, according to the testimony of Mr. Taylor, it would have been impossible to assign a sufficient number of Correctional Officers to perform this function at the relevant times. This, however, does not end the matter. While the Board has issued a general declaration that requiring Industrial L Officers and Trades Trainers to frisk search inmates did not violate Article 18.1, the Board has some difficulty with the way in which the searches were required to be conducted. To be specific, the Board finds that it was in violation of Article 18.1 for the Ministry to require these employees to search any inmates in their own work gangs. As R reasonable precaution against the risk of injury the Ministry should have arranged matters so that the only inmates frisk searched by these employees were from other work gangs. In this regard, we accept ( the evidence of Dr. Ellis that the "hypocricy" factor inherent in being required to search a member of one's own work gang, . ;, , : ,. 12. i- d in combination with the enhanced opportunity in the shop for violence against the officer, tends to lead to an unacceptably high degree of risk which should be eliminated. The evidence did not show that the security needs of the Institution, as a practical matters, would.prevent theinstitut- ion from taking the foregoing precaution. As it now stands, t :.,,;:. 'we understand from the evidence, many inmates who are searched I:, i ...!.- "r: : 'i;. by Industrial Officers and Trades Trainers are not their own. ,', ~. _ 'i:?j. I~ ::..~: : It: seems to. the Board that it should not be unduly, inconvenient<: ":'-A(? I' . ., -' ,; : c ' ':I I ; , to~the. Institution to rearrange matters so that these employees'~..';-~-..~~~. ,j/. 6. :$g- ; _I:'. ,, . . _' ..:,. ',, -,.'; :.i-- .A ..~.,;:'+& :do~ not search any members of their own work gangs. .' : ,!. .+ ,; I, '>"' ) ,~ .' *y...;.;,. li::~._..':,.,i,l~~.~.: ..&:.:::..,, Dr. Humphries that an Industrial Officer or Trades Trainerwho has a cut on his hand should not be performing a frisk search. Accordingly, 'we declare that it would be a violation of Article 18.1 of the Collective Agreement if an Industrial Officer or Trades Trainer with an open wound on his hand were required to perform a frisk search. To be in conformity with Article 18.1, it would be essential for such a wound to be properly . treated and fitted with a protective dressing before engaging in such a search. i b ‘( I,.. c :‘f 13. -DATED at London, Ontario, this 28th day November 1986. .