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HomeMy WebLinkAbout1986-0546.Union.88-02-03IN THE NATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE CRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: OPSEU (Union Grievance) Grievor and The Crown in Right of Ontario (Minis.try of Correctional Services) Employer R.L. Kennedy Vice-Chairman I.J. Thomson Member’ M.F. O’Toole Member Bernard Hanson Counsel Cavalluzzo, Hayes and Lennon Barristers & Solicitors For the Employer: J.F. Benedict Mal-Wger .Staff Relations, Personnel Branch Ministry of Correctional Services Hearings: March 11, 1987 April 30, 1987 December 7, 1987 December 9, 1987 -2- INTERIM DECISION .-, This matter involves a Union grievance dated June 16, 1986 alleging that the establishment of a one-person, night-time perimeter patrol at the Sudbury Jail constituted a violation of Article 18.1 of the collective agreement; That article provides as follows: ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS 18,l The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed 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. The purpose of this interim aecision is to confirm the oral directions and instructions which the Board delivered to the parties at the conclusion of four days of testimony and argument. The factual background and circumstances may be briefly summarised. The Sudbury Jail is a maximum security institution, housing a wide range of inmates covering all sectors of the criminal community. It has capacit.y for 185 inmates and employs a staff of 87. Fifty-two of the employees are classified as Correctional Officers. The jail is located in downtown Sudbury next door to the court house in an area described as being mixed residentia and commercial and is approximately two blocks from the city centre. The institution is not fenced. On May 12, 1986 the Superintendent of the jail issued a memorandum to all staff requiring that an outside patrol of the institution be carried out by one Correctional Officer once an hour during the period between 11:OO p.m. and 6:00 a.m. The Officer was to be equipped with a flashlight, &o-way radio and punch clock and was required to key in at a number of punch stations located at various locations around the outside of the institution.' The procedure was subsequently incorporated into the standing orders, and the one-man perimeter patrols have been regularly undertaken by Correctional Officers since that time. The procedures with respect to those patrols have, however, changed significantly since the date of the grievance. The Union position on this arbitration is that in instituting the patrol, the Employer did not make reasonable provisions for the safety and health of the Correctional Officers involved in the patrol, and that this situation continues to exist, notwithstanding the subsequent changes unilaterally introduced by the Employer. By way of remedy, Union counsel sought an order from this Board implementing perimeter patrol procedures similar to those that the evidence established existed at other institutions run by the Employer. In the alternative, the Union sought a cease and desist order directed to the Employer and an order that the parties meet, either in the context of the Health and Safety Committee or otherwise, to work out a mutually satisfactory procedure for the patrols, and that in the meantime, this Board retain jurisdiction in the event the parties cannot reach agreement within a go-day period. In the course of the hearing we heard extensive evidence describing the.physical environment around the jail and the nature of the work of a Correctional Officer. Particular emphasis was placed on the interaction with inmates and the 'details of the procedures and mechanical aids available for the protection and back-up of a Correctional Officer in the course of an outside patrols. We heard evidence with respect to the exposure of'Correctiona1 Officers to threats and assaults from inmates, both while at work and while in the community, and in particular we heard evidence of a number of incidents of violence directed at the person or property of Correctional Officers in Sudbury by former inmates. Three expert witnesses were called by the parties, each of whom possessed impressive academic and practical qualifications, and each of whom was well qualified to comment on and evaluate the extent of potential risk to a Correctional Officer in the context of an outside perimeter patrol of the Sudbury Jail. Needless to say, there were marked differences of opinion among &hose experts as to the degree of : - 5.- risk involved and the appropriate steps to be taken to minimize that risk. We received evidence with respect to a number of recent changes in procedures and equipment that had been instituted in Sudbury that bear directly on the health and safety aspects of the outside perimeter patrol. With respect to this evidence, the Employer argued that the changes simply made a good system better, whereas the Union argued that the changes constituted conclusive evidence that the procedures as originally implemented were inadequate. What is clear and undisputed on the evidence is the fact that at no time have the parties, at a local level, and. in a spirit of co-operation, attempted to discuss the serious .issues of safety that we are being asked to decide. The patrols and procedures were introduced without prior consultation or input from the individual who would have to follow those procedures. Subsequently, physical changes have been made outside the institution, additional camera monitor surveillance has been installed, and recently a training course has been designed and given to Correctional Officers, instructing them on how to handle the duties and risks to be encountered in the outside perimeter rounds. It may be noted that the lack of appropriate training for the duty was a matter stressed by Union witnesses and by the Union's expert witness in the early days of the hearing. The Superintendent in his evidence agreed that -6- Correctional Officers probably would have some useful input into the issues,.but it is clear on the evidence that such input was never either sought by the Employer or urged by the Union through the Health and Safety Committee or otherwise. The parties would appear to have found it easier to arbitrate the issues, rather' than to discuss them. Aswe advised the parties at the conclusion of the hearing, we are satisfied on the evidence that as at the date of the grievance the Employer had not made reasonable provisions for the safety and health of'its employees during the hours of their employment while performing outside perimeter patrols of the institution. We are reluctant at this stage to reach a final conclusion.as to whether or not that situation continues to exist. There were several suggestions in the evidence as to additional procedures and equipment which would be reasonable to introduce, but the evidence was not conclusive as to whether these would be either reasonable or necessary in the Sudbury context. We were advised of procedures and equipment at other institutions. The Superintendent indicated that a further camera for outside.surveillance would be installed shortly. He expressed a desire when funds became available to install an additional camera at another area 'outside the institution which could not at present be monitored on camera from inside the institution. There were suggestions of different radio equipment and perhaps a dedicated frequency for the radio used by the Correctional Officer on outside patrol. There was evidence relating to the activities of the Correctional Officer in the Control Office while a patrol was in process, and that evidence would indicate definitive procedures should be prepared describing that personls role as back-up to the Correctional Officer who is outside. In that regard, there was evidence by a Correctional Officer who serves frequently as the Control Officer that he had no idea how to operate some important equipment in the Control Office directly bearing.on outside security. There was evidence as to the adequacy or otherwise of the equipment and clothing available to be used -by CorrectionalOfficers. The parties,are in a much better position than is this Board to evaluate the real and legitimate concerns in this area and to distinguish between real concerns and theoretical ,concerns in the context of the Sudbury Jail. We do not believe that the parties have yet addressed those issues outside of an adversarial context. It is our view that the second sentence of Article 18.1 is of equal importance to the first sentence and requires cog- operation between the parties on health and safety matters. It is a mutual obligation and in our view, on the factual circumstances of this case, both parties are in default of their obligations thereunder. We do not consider it appropriate that -0- health and safety matters be resolved before The Grievance Settlement Board until the parties have made a legitimate effort to handle the issues within the provisions envisaged by the coilective agreement. We would, therefore, direct the parties that all these issues now be reviewed in the context of joint consultation. We were advised that a Health and Safety Committee does exist and that is the appropriate body to pursue the matter. . We would, however, recommend that the Committee be expanded to include a representative of each party who has been present throughout the hearing, has heard the evidence, and is aware of the issues and concerns ‘that have been expressed by and to this Board. It would appear that the logical persons in that regard would be the Superintendent, Mr. Hooson, and the Local President, Mr. McCausland. We direct that the Committee report back to us within a period of 90 days outIining the areas in which the parties have reached agreement and the areas, if any, in which they continue to be apart. If there is not agreement between, the parties, the report should indicate the position of each party and a summary of the rationale for tha,t position. - 9 - We, of course, remain seized with respect to all aspects of this matter. DATED this 3rd day of February 190%. rj? oole -Member