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HomeMy WebLinkAbout1987-1466.Briek et al.88-10-21ONTlRlO EMP‘OY,%DEL* CO”RONNE CROWN EUPLO”FES DE L’ONT”R!O GRIEVANCE CQMMISSION DE ;Ell.,,MENT REGLEMENT DES GRIEFS 1466187, 2193/07, 2194/07, 2196107, 2197i07, 2212187, 2213181, 2364f81 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Joseph Brlek et al) Before: and The Crown in Right of Ontario (Ministry of Correctional Services) N.V. Dissanayake Vice Chairperson P. Klym Member D. Wallace Member For the Grievers: R. Ross Wells Counsel Gowling & Henderson Barristers and Solicitors.' For the Employer: S.J. Shamie COUllS2 1 Hicks Morley Hamilton Stewart StOrie Barristers and Solicitors Rear-in&: April 20, 1988 April 29, 1988 May 10, 1988 Employer DECISION The present arbitration arises out of eight individual grievances filed by eight employees employed E&S correctional officers at the Niagara Detention Centre. The grievances claim that the Employer has violated article 18.1 of the coliective agreement. While the grievances are somewhat differently worded the issue raised in each is the same. Therefore it was agreed that the eight grievances should be heard together. The following wording ( the allegations raised an' grievances: file 2197/87) is typical of d remedy requested in the -1 grieve a breach of the collective agreement specifically - but not exclusively - article 18.1 in that I am being forced to work in an unsafe environment under unsafe conditions, namely - Second Floor Segregation at the Niagara Detention Centre, without thought of my well being by administration. The settlement desired is described as follows: The Administration immediately cea.se from the action of having me enter and check second floor segregation as well as main floor segregation alone - Permanent staff be posted on a 24 hour basis for the entire unmanned seg. areas. Article 18.1 of the coliective agreement provides: 18.1 The Employer shali cont:nue to make reasonable pro"1s1ons for the safety and - ~ - 2 - 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 pcssibie in the prevention of accidents and in the reasonable promotion of safety and health of all employees. The parties agreed that in determining the grievances, the Board should consider the facts as they existed as of the time of the hearing and not the time of filing of the grievances. .- ISSUE OF JURISDICTION At the commencement of the hearing, counsel for the Employer raised an objection to this Board's jurisdiction to entertain the grievances. The objection is based on section 18(l) of the Crown Emmloyees Collective Barqainina Act, which reads as follows 18. (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, witliout limiting the generality of the foregoing, includes the right to determine, (al employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions;and ~.* (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent. and such matters will not be the subject of collective bargaining nor Come within the jurisdiction of a board. - 3 - 7: Counsel submits that the gist of tine grievances is that the levei of staffing and work nethods are sucn that reasonable safety does not exist, and that the grievor9 are requesting that the Board review the adequacy of the staff complement by interpreting article 18.1. Counsel submits that the Board has no jurisdiction to do so because section 18(l) of the Act declares that inter alia, "organization" and "complement", are exclusive functions of the Employer and that such matters "will not be the subject of collective bargaining nor come within the jurisdiction of a board." _ Counsel contends that the relief requested, namely that 24 hour staff be posted in the segregation area, indicates that the gist of the grievance is not a health and safety concern, but one relation to the staffing methods. Counsel fu~rther submits that any remedy the Board may devise-if it finds a violation will necessarily impinge of management rights and that the Board has no jurisdiction to devise such a remedy. Counsel for the Union contends that almost every grievance relating to health and safety under article 18.1 arises out of matters that may touch upon matters such as organization. complement, work methods and equipment etc. If the Employer's position is right, counsel submits that article 16.1 might as well b<: , -4- i'. declared void. Counsel submits that in that event, the Employer wsuld have bargained in bad faith when it negotiated article 18.1 In his view, if the real issue raised in the grievance is a heaith and safety issue, the Board has jurisdiction even if it may incidentally impinge on a management right. Counsel characterises the gist of the grievance as relating safety, namely "whether it is reasonably safe to have~a Correctional Officer enter the segregation area alone, after the inmates have been left unobserved for 20 to 30 minutes and sometimes even up to 45 minutes, and he cannot know what is beyond the door or what had gone on during the past half hour or more." He submits that the grievors have suggested a remedy they prefer and that if the Board finds a violation of article 18.1, it has a broad authority, and indeed an obligation, to remedy that. He relies on the Divisional Court's decision in m iBerry et aii (unreported). Eowever, Counsei submits that even if the Board decides that the remedy sought is not within its jurisdiction, the Board can provide an alternate remedy it deems fit. The Union relies on the Board's decision in the policy grLevance in GPSEU an<--.----- the Ministry of Correctional.>ervices, 1252/85 (Zoiiffei. Phere also the grievance was based on article 18.1. The safety l.ssue 3.s swnmarised ln the fo1lo~cir.g passage of the -s- decision: AS appears from the grievance itself, the employees' complaint is that one officer is required to enter the day room alone twice each hour during the evening when all or most of the Wing's inmates are watching television or playing cards there, an inspection during which one or more of the inmates may express resentment against an interruption of their recreational activities. It is alleged that the requirement exposes officers to unusual risk, sometimes evidenced by physical obstruction as well as verbal abuse. The Employer in that case also raised an objection to the Board's jurisdiction, relying on section 18(l) of the Act. The gist of the Employer's jurisdictional argument is capsulized by the Board as follows: He submitted that even if the Board finds reasonable provisions for health and safety have not been made at Millbrook, the remedy sought (a "cease and desist" order) would not be within the jurisdiction of the board, having regard to the restrictions imposed by Section 18(l) of the G. He said that "whatever the remedial authority of the Board may be, it does not include those matters that (in the words ' of 18(l)) will not be the subject of collective bargaining nor corn3 within the jurisdiction of a board." In a unanimous decision, the Board dismissed the Employer's preliminary objection. The reasons for the decision are set out in the following excerpt: The grievance "S3.S based on Article 18.1, in which the Employer had agreed to "continue to make reasonable provisions for the safety and health of its employees during the hours of their employment." It is also required by law in paragraph (g) of subsection (2), Section 14, i r? the Occu~arional _ ..H_g.q in!: b .._.. and- ~Saf~3~!:~.L4_ct~ that "an _- -6- ‘I ,,. employer shall... take every precaution reasonable in the circumstances for the protection of a worker." This provi~sion is made binding on the Crown by Sec:lcn of the same Act. in which subsection (2) is perhaps even more important than subsection (1): 2. - (1) This Act binds the Crown and applies to an employee in the scr-vice of the Crown or an agency, board, commission or corporation that exercises any function assigned or delegated to it by the Crown. (2) Notwithstanding arqthlng in any general or special Act, the provisions of this Act and the regulations prevail. It is true that Section 18(l) of the Crown Employees Collective Bargainina Act appears- at first sight - to give management the unfettered and exclusive iunction to determine "work methods and procedures",. as expressly stated in paragraph (a) of 18(l). Nevertheless, subsection the Occupational (2) !UI, Section 2 of Health Safetv Act provides a complete answer to the argument that Section 18(l) of the C.E.C.B.A. is paramount. The answer is that the provisions of the O.H. & S.Act prevail over Section 18(l) of the C.E.C.B.A. Specifically, Section lO(2) (9) of the O.H.&S. Act that the employer shall "take every precaution reasonable in the circumstances for the protection of a worker" is the paramount law and prevails over Section 18(l) of the C.E.C.B.A. Section 14(2)(g) happens to be to the same effect as Article 18.1 of the collective agreement. Moreover, the O.H.&S. Act was enacted in 1978 - after the.C.E.C.B.A. had become law. For the reasons stated above, the jurisdiction of this Board is not barred by Section 18(l) of the C.E.C.B.A. Mr. Shamie for the Employer recognizcs that the Joliffe award runs direct!? co'anter ~0 his posicLion. - 7 - 5 ,~ The position taken in that case by the Employer (which incidentally was also the plrnistry of Correctional Services) was the same as the one taken by the Employer in this case and it was rejected by the Board. Nevertheless, it is submitted that we should decline to follow the Jolliffe'award on the grounds that it is "manifestly wrong". Counsei submits that the Board in that case committed a serious jurisdictional error by purporting to derive primary jurisdiction to hear the grievance from the Occupational Health and Safety Act. It is not necessary for us to comment on the - Jolliffe award because in our view, the Board has jurisdiction to hear the present grievances quite apart from the Occupational Health and Safety Act. The Employer relied on Re Dic&ie, 0314/85 (Palmer). There the grievance alleged that the grievor had been improperly denied a merit increase. The Employer raised an objection to the Board's jurisdiction to entertain the grievance and relied on section 18(l) of the Act. The Board reviewed section 18(l) and concluded (Board . . Member R. Russell dissenting) as follows: Clearly, the foregoing indicates that the "merit system" is something which is a "exclusive function of the employer to manage." Further. the final words of that section appear dispositive of the present matter, i.e., that "such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board." In this -8- 5 r,, regard, referencemust be had to Section l(l) (cl, which clearly indicates that the word "board" covers the present board of arbitration which is established pursuant to this &L. Obviously, the request of the Union asks us to determine the way in which the Employer has managed the merit system which is established. This, in our opinion, is something we cannot do. In our view the grievance before us is clearly distinguishable. In Dickie, the complaint was directly challenging the manner in which tEe Employer administered the merit system - a function declared by the Act to be an exclusive function of management. In the case before us, the grievom;': are pursuing a substantive right- under a provision dealing with employee health and safety, which the parties have deemed proper to include in the collective agreement. The Employer does not claim that article 18-1 per se is void as being contrary to section 18(l) of the Act. nor can such an argument prevail, in our view. The employees have grieved a health and safety hazard under that provision. The fact that the remedy claimed by the employees may impinge upon a management right does not in our view deprive the Board of jurisdiction to undertake an inquiry as to whether the substantive rights of employees under article 15.1 have been contravened. We need not decide the issue of the appropriateness of the remedy requested at this time. However, even if the Emplcyer's contention, that any remedy that the Board may devise. will impinge on ‘, -9- management rights, is valid (and we make no such finding here), it may woli be that the union will have to be content with a mere declaration. However, the question of appropriate remedy is a matter to be distinguished from the issue of liability. In ke Gonneau, 22-l/81 (Teplitsky) the Board recognized that article 18.01 was more than a mere declaration of intention and that it "imposes an obligation on the Employer". Where there is an obligation there must be a means of enforcing that. If not, article 15.1 will be rendered meaningless. In our view the proper test to apply in these situations is to ask whether the gist or substance of the grievance is one relating to health and safety or to a function designated as a management right. If the gist of the grievance is a health and safety issue the Board has jurisdiction. From the evidence before us, there can be no doubt that the employees' concern throughout has been one relating to their own safety. Initially they made two suggestions, the replacement of cell doors and the posting of 24 hour staff as a remedy. The Employer implemented the former, but not the latter. Mr. John Hilderbrandt, the Superintendent of the Niagara Detention Centre, agreed that the grievers were motivated by a safety ccficern and had no ulterior - 10 - motl.ves. In light of all the evidence, the Board is satisfied that the substance of the grievance is a safety cmcern. As such, the management rights provision in section 18(l) does not deprive this Board of jurisdiction to determine if the Employees' rights under article 15.1 were violated. In summary, the Board concludes that the gist of the grievances before it relates to a health and safety issue and that the possibility that the remedy requested may infringe upon a management right under section 18(l) of the Act does not render the grievances inarbitrable. Accordingly, the BLard has jurisdiction to hear the merits of the grievances before it. THE MERITS The grievors are all employed as Correctional Officers ("C.O.") at the Niagara Detention Centre (NDC). The NDC is classified as a maximum security facility. The facility consists of a four wing maximum security area with 48 individual cells, a medium security area and a segregation area for male inmates. ._ The segregation area consists of 16 segregation cells, 12 on the second floor and 4 on the ground floor. The grievances relate specifically to the working condition in the upper flocr. The upper floor - 11 - segregation area had previously been a holding area for female inmates. At some unknown date, t'nat area was converted for use as a male segregation area. An inmate may be placed in segregation if found guilty of misconduct such as fighting, being in an unauthorised place or being found i n possession 0 f unauthorized material commonly known as "contraband" or as a means of "protective custody" where it is deemed inappropriate to place him in the general inmate population because of his unstable emotionai state, rebellious attitude or the type of offence for which he was incarcerated. -The segregation inmates are locked UP in a cell all day except for a 15-20 minute recreation -period each day. They do not enjoy facilities for watching T.V.. games and sports or day room activities. A segregated inmate has no contact with any other inmate, except where'two segregation inmates are placed in the same cell. This was not an uncommon occurrence. The union witnesses testified that the segregation inmates are generally more aggressive than other inmates and that their aggressiveness increases as they spend .w time in segregation. The C.0.s who work in the segregation area come within the jurisdiction of the maximum area supervision. The C.0.s assignetd to work in segregation operate in CWc - - 12 - .a main 12 hour shifts, 7:OrJ a.m. to i:iro p.m. and 7:oo p.m. to 7:oo a.m. There are also two other overlapping shifts. The Board heard a substantial amount of evidence as to the duties of a C.O. posted to segregation. It is not useful to review that evidence in detail. What is important to note is that a C.O. posted to a shift in the segregation unit has other duties in other areas of the institution. The segregation C.O. makes periodical checks of the segregation cells but at other times during the shift is engaged in duties away from the segregation unit. Anywhere from 20-30 minutes may elapse between checks of the segregation area. One union witness tesf'ified that if some problem crops ug and a C.O. gets delayed in another area, it may take up to 45 minutes.before he gets an opportunity to check the segregation area. Between checks, the inmates are left in their cells unobserved. During these periods of usually 20-30 minutes no C-0. is present in the segregation unit. This is at the root of the C.O.4 concerns. When the C.O. returns to the area for the periodic check, he or she is completely unaware of what <he inmates had been up to and may be walking in to a dangerous situation. The Board heard evidence about the various safety and security measures that are in place in the segregation area. The main entrance is sacured by a - 13 - ,‘: security door which can only be opened by a key or electronically through the central control desk. A similar security door is located at the bottom of the stairs leading up to the upstairs segregation area. The C.O.'s carry "walkie-talkie" radios which reach a number of locations, including the central control desk. The segregation area is equipped with a security alarm system which can be activated by pressing one of two alarm buttons located in the area. In addition, there is an "inter-corn" system which reaches a number of places. Finally, there is a fire detection system including fire alarms in each individual cell. The segregation area' also is equipped with fire extinguishing equipment. The Board heard evidence relating to a number of incidents which have occurred in the segregation area. The most serious of these, and the one that directly led to the filing of these grievances, occurred on September 21, 1987. On that day, two inmates in the upper segregation unit managed to open their cell door by repeatedly kicking it, while using the bed for leverage. Two inmates in another -*cell also kicked at their cell door but was unable to breach the door although the door was badly bent as a result. When the C.O. on duty Mr. Bernie Marchio, arrived in the segregation area for his check up, he was unaware of the - 14 - ,f,. ,* inmates' activities. He proceeded one fourth of the way down the hall fin the upper segregation before he noticed that a cell door was open. His immediate thought was that the inmates had escaped, but also concerned that they may be waiting in ambush to attack him. However, when he looked in the cell he found the inmates still inside, one lying on the bed and the other on the mattress on the floor. There was no further trouble arising out of the situation. However, Mr. Marchio testified that the inmates could have attacked him, taken the cell keys and released all of the inmates, and using his key to the security door they could have all escaped. He testiEied that his radio, the alarm system and inter-con would have been of no assistance because be would have been immobilised by the inmates. The Board heard no evidence of 'any breaches of a cell door security other than on September 27, 1987. In addition, evidence was led relating to the following "incidents" that occurred in the segregation area: - An inmate smashed up a porcelain sink and threw pieces at the .staff. held a pointed piece in his hands and made threats. He was subdued and there were no injuries. - Some 2 or 4 years ago, the fire alarm scundzd. - 15 - i’ ~fie officers invest;gated and dlscoverrc inat an inmace had started a fire a: the back of the cell, using his clothing, bed linen and his piastic meal tray. The inmate was standing naked on his bed. He had tied up his cell .door with sheets and used books to biock the cell door tracks. As a result ii took the staff 4 to 5 minutes to open the cell door and extinguish the fire. - An inmate attempted suicide by 'hanging, using his bed sheets to devise "a rope”. The evidence was that he was saved on&y because he accidentally tripped the fire alarm. - An inmate used wire, which was contained in the cell's base boards, to device a pointed weapon. There was no evidence of any attack being made with this weapon. - Finally, evidence was adduced about various "tricks" that inmates devised while not being observed. .The most frequent is the causing of flooding by blocking the sink or toilet. The evidence was that, having fiooded the area, the inmates watch and hope the C.C. slips and falls as he walks in. There was no evidence of any falls or injuries as a result of flooding. The union witnesses testified that during the time they have to themselves some inmates induce other "not too - 16 - CL bright" inmates to Play tricks on t ne c , 0 . As one witness pui it, "playing tricks on the C.0. is a form of entertainment for them". When asked to give examples of these tricks, the only one the witness could recall was an incident where an inmate had braided toilet paper into a "stick" and tripped him with it as he walked past the cell. He fell down, but was not hurt. In addition to these events that actually occurred, the grievors who testified expressed concern about the possibility that -an inmate may be able to make a key or devise a weapon by shaping a tooth brush. The witnesses also testified of their concerns about being taken hostage. While agreeing that these events have not in fact happened in segregation, they felt that the possibility exists as long as the inmates are left unobserved. The evidence indicates that the Employer has taken corrective action as a result of some of the incidents that occurred. Subsequent to the-fire incident, matches were declared contraband and not allowed in the cells. The inmates were required to be'searched for matches before being placed in a cell. However, the evidence is that not infrequently, inmates still manage to smuggle matches into their cells. - 19 - 1 C. ;ie.;;andco c -11 t ixc stair "s\'era.je 3~ IL the ';ppet~ segregation unit i.' Y 2 z before the September 27, 1987 incident. Mr . tiilaerbranat in crass-examination testified that in the past he had agreed with correctional officers that 24 hour coverage would be "ideal". While in his ‘evidence he stated that a 24 hour post would be "an abuse of staff complement", Mr. Hilderbrandt agreed in cross examination that such a post will enhance the ability to run the institution. However, he insisted that the present staff complement was enough to run the institution safely and denied that the present arrangement exposed correctional officers to any undue risks. The evidence also indicates that in response to the concerns expressed by the staff, at some point prior to September 27, 1987, m. Hilderbrandt considered providing a 24 hour post in the segregation unit, by reorganising the existing staff complement, but found that it was not feasible. Then he made a request for an additional officer from the Regional Office and attempted to justify such a need. However, we did not hear exactly what justifications qere offered by him. The evidence is that the Superintendent does not have the authority to unilaterally increase sta-ff COmPlement- A request must be made through the Regional Director, and n.ust ultimately SC approved by Management Ecard of those guidelines. Under repeated cross-examination, Mr. Hilderbrandt maintained that the existing staffing in the segregation unit was adequate and that there was no safety or security reasons on which a request for additional staff could have been justified. He agreed that he would nor normally pursue demands of correctional officers if he felt that they were frivolous or without merit. When asked why then he made a request for addition staff in response to the demands for a 24 hour segregation post, he said "we always like to enhance staff complement so that it will affect other programmes and procedures". SUBMISSIONS Counsel for the union concedes that the job of.a correctional officer is inherently a hazardous one. However, he submits that under article 15.1 the Employer has a duty to minimize an identifiable risk where it is reasonable to do so. He points to the evidence that the Ministry's training programme -- stresses that physical observation of the inmates is very important in ensuring security and keeping control of the institution. Is-a submits that although the union cannot disprove the evidence that the new steel doors are secure, there is ,~ ~-~__~~ - Z! - ” I the possibility of inmates breachinc even thwse doors. He points to two instances of fabrication of weapons, once with pieces from the smashed porcelain sink and the other from the wire from the baseboard. While these particular sources of danger have been eliminated, counsel submits that if left unobserved the inmates will think of new ways of devising weapons. He points to the evidence that despite the banning of matches and body searches it is impossible to always: detect matches hidden by inmates. He submits that a fire set in a cell is not only a threat to the inmates, but exposes the staff to danger. Counsel contends that while disasters perceived by the staff are unlikely to occur frequently, the Board should recognize that if they do occ-or the consequences' would be extremely serious. The board is urged to compare these disastrous consequences with what it will take to prevent it, namely the provision of a 24 hour post in the area. Counsel submits that the fact that a C.O. has not todate been maimed or killed should not prevent a finding that article 15 had been violated. In these circumstances, it is submitted~that the 24 hour .* post in "a reasonable prevision for the safety and health of its employees" within the me'aning of article 15.1 and the Board is uryed to so find. c~lllssl~ : >,i the Emnlo~::- ;u:im1:s ti?;:t ;i 1: c 1. " A td 1 5 . i dCi;is no: c$iig.ite the Employer to guarantee against every risk. She obligatioc ;s only to make 'reasonabie provision". He points out that given the nature of the job of a C.O., not all risks can be eiiminated. He points to section 2.341) (c) of the Occupational Health and Safety Act, which denies the right to refuse unsafe work to (' a person employed in the operation of a correctional institution or facility" a.5 a legislative recognition that exposure to certain risks is inherent in employment in a correctional institute. Counsel concedes that a problem existed in the segregation unit, but submits that the root of the problem was eliminated when the new doors were installed. Since then, the only "incident" in the' segregation unit was the tripping of aG officer uith braided toilet paper. He points to the many safety devices and procedures in place in the segregation unit. He urges the Board to find in the circumstances that the employer has acted in a responsible and professional manner in providing a safe work environmect and that there has been no violation of article,l5. .w -RMINATiON The issue to be determined is Clear. By leaving segregation inmates unobserved and requiring staff to !qe heard. submissions as CO the nature of the Employer's obligation under article 15. It was agreed rhat at least as far as correc'io-ai c *. officers are concerned, the obligation does not go_ so far as to require elimination of all risks. The phrase "reasonable provisions" has been interpreted by the Board previously. In OPSEV lPolicv Grievance) 69/84, 70/84 (Samuels) the Board set out the relevant facts as follows: The only inmates with which this officer will come in contact during his shift are on their way-to the hospital (within the institution), or on their way perhaps to some other living area for security purposes, or scme other reason. The back end officer will be notified that there is an inmate who must go to the hospital, and-he will go to the living area, where the inmate is released by the officer in the living area, and then the back end officer will escort the inmate down the stairs and to the exit from the back end. Similarly, he will escort the inmate from the entry to the back end back to the living area, on the inmate's return from the hospital. The Union's concern is that the back end officer may be assaulted and overpowered by the inmate whiie the officer is on single escort. And this could lead to further serious consequences once the inmate laid hands on the keys carried by the officer. The Union suggests that this dangerous situation should be remedied by manning the back end module during the period in question. -- L.. . I - 24 - The evidence disclosed that tn15 systum of manning t'ne back end dlaring t 1; e hours of midnight to 6:OU a.m. has been in piace for at least twenty years and there hils never been a single incident. if the back end. officer is concerned about escorting the inmate alone, the officer carries a radio and he can ask for help before he collects the inmate. In our view, the risk is infinitesimal, given the total experience of the witnesses and the number of inmates involved over time. Article 18.1 speaks of reasonable provisions" (emphasis added) for the safety an> health of the employees. And this is echoed in section 14(2)(g) of the Occupational Health and Safety 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 1eGislation contemplate "reasonable" precaution. Similar observations were made by the Board in OPSEU (Union Grievance) (Roberts) (1986) 27 L.A.C. (3d) 233. Counsel for the union submits that the Samuels award is distinguishable because it was based on the Board's conclusion that "It is necessary to balance the safety of the employees against--the need for care and custody of the inmates and the purposes of the institution." Counsel points out that here there is no such balancing required because the full time manning of the segregation unit will enhance both employee saruty *: ” ;i:i?. :p..c s,;L.:~-ty a< the lc~:;r’~tloR. ‘% I: 1 ,i i: i?.c L1,ard d i d make the general statemer.K as to a need in or balancing c;f interest, that could not h a .j ,a bee2 ciie basis of the Board's decision. 'There the union h'as demandinS that the back-end module be manned when back- end officer is escorting an inmate in or out. such manning would also enhance both the security as well as the safety of the employees. We do not see the Board's general comment about the need for balancing of interests as affecting its interpretation of article 15 that it does not require elimination of all risks. We agree with that interpretation, of the phrase "reasonable pr&isions". The issue is whether that standard has been met by the Employer here. A careful review of the evidence indicates that the only. circumstances in which the returning correctional officer can be exposed to any real danger is where an inmate or inmates have managed to escape from the cell. Al though no injuries or serious consequences resulted from the incident on September 27, 1987, things could have been different if the two inmates chose to behave differently. If an inmate is at large, all of the .* security devices available to the officer may not be sufficient to prevent drastic consequences. However, the evidence is clear that all of the ceil doors in the upper segregation area have neen replaced. The 1967 incident, he was not a Y a r e 0 f the inferior cons t rucLlon of the ceil doors that were in use at the time In contrast. the new doors were ordered with particular attention to the security aspect and as a direct response to the breaching of the old door. While he admitted that "no door is impregnable", the evidence is clear that the new doors are far superior than the old. They are constructed with steel plate, the viewport is removable only from the outside and they cannot be opened from the inside even if a key was available. The chances of an inmate breaking such a door in our view is remote. In so finding, we accept the Superintende>t's evidence that he satisfied himself in consultation with the construction Superintendent that the adjustments that were done on the new doors in, the installation process did not affect their security. It is the Board's conclusion from all of the evidence, that as long as the inmates are confined in their cells, the chances of an officer being injured is minimal. The Board heard evidence that fires are started in cells quite frequently by inmates despite the strict procedures relating to 'detection of matches. Yet. there was no evidence of one instance where an officer required medical treatment or was injured in any way. This is not surprising considering the extensive ,C? ? ii f ; r e L4c:cL:1cin a A7 c i;(.~~.n~;~~i~11;:~1; ; 1, ;; ; i 2 ‘J y l 5 .i::.,i equipment -An place. ‘rnc porccla;:: SLII,; IIiCLOLL. ‘,:a:: ct concezr: io Lhe union. 'i'he par-cclaii: sinks ha-;e i-.zx seen replaCed with metal ones. In any event, we are satisfied that as long as the officer uses the security devices s.uch as the alarms, radios and intercom. tl’nen there his not a real likelihood that an inmate confined in his cell can pose a serious danger to the officer. In this regard we also note that there is a "standing order", that two officers must be ~present when a cell door~is opened. There is no doubt that inmates left unobserved will have more opportunity to plan various tricks to play on the officers. The flooding and the braided toilet caper incident are examples. However, we are not satisfied that these tricks pose any real danger to the staff. They are more in the nature of annoyances or inconveniences. There can be no quarrel with the general proposition that physical observation of the inmates is one of the most important aspects of assuring their orderly conduct. Thus, 24 hour observation through fuli-time staff or some other alternate method such as monitoring centraliy through c&eras. would be ideal. However, as the Board has stated before, article 15 does not impose such a high standard of duty on the employer. The duty is to provide "reasonable" provisions for 1 In ally of the circumstances, we conclude that the employer, as of the time of tile hearing, had met with its obligation under article 13. kc,$crdingly, these grievances are hereby dismissed. Dated in Hamilton, OnteriO this 21st day of October, 1988 Nimal V. Dissanayake Vice-Chairperson Member D. Wallace Member ADDENDUM I concur in the final determination in this case but I feel a few additional comments are required. Although the Correctional Officer job is inherently a hazardous one and it may not be possible to eliminate certain risks, the people performing this job have a right to expect that, where possible, steps are taken to reduce safety hazards and risks, as in any other occupation. My concern in this. case is that the approach taken by the Ministry seems to be based on a standard that there must be an actual demonstrated incident or event which created an obviously unsafe and hazardous condition before remedial steps are taken. The evidence in this case shoved the following: The doors were checked and replaced after two had been breached. - The beds were moved &$gr they had been used for leverage in breaching doors. The porcelain sinks on the first floor were replaced, with metal ones after an inmate had broken his and threatened staff with pointed parts. baseboards containing metal were removed after an inmate had used this wire to make a weapon. Matches were declared contraband and not allowed in cells and a match search instituted after an inmate had started a fire in his cell. Further, testimony from an employer's witness was that the Ministry demanded evidence of actual hazardous occurences before they would authorize additional staff. A proper approach to health and" safety problem, involves anticipation of potential hazards and taking reasonable steps . to correct them. Indeed this is the obligation under the Occupational Health and Safety Act and Article 18 of the Collective Agreement. I submit that an apparent approach to health and safety problems that tends to demand actual occurences of hazardous events before corrective action is taken is extremely dangerous and not one that can be condoned. In this case I am puzzled why one clearly identified potential hazard on the second floor has not been corrected. I refer to the fact that the porcelain sinks had not been replaced by metal ones on the second floor but only in the first floor segregation cells. No satisfactory explanation was given to the Board as to why this has not been done. I would suggest to the parties that it would be appropriate for them to discuss vhether this matter deserves their attention and action. . .