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HomeMy WebLinkAbout1987-1764.Stockwell.89-02-10t i. ’ CQMMISSION DE ETTLEMENT RkGLEMENT -- ,OARD DES GRIEFS Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Grievor - and - The Crown in Right of ~ntarjo (Ministry of Correctional Services) Employer For the Grievor: For the Employer: Hearings: T.H. Wilson Vice-Chairperson I ..J . Thomson Member G. Milley Member K. Hughes Counsel J.F. Benedict Staff Relations and Cnmpensatibn Mjnistry of Cnrrectinx3; services DECISION The grievor, Margaret Stockwe 11, is a Correctiona ,l Officer 2 at the Metropolitan Toronto West Detention Centre. From time to time as part of her duties, she accompanies inmates in a Ministry van to and from the Centre to other locations such as a hospital or Metfors at 1001 Queen St. West or the Clarke Institute on College Street, Toronto. She grieves that in case of an accident involving the vehicle she could be trapped in the vehicle as she is locked into the secure portion of the vehicle with the inmate. It is necessary for someone in the driving portion of the vehicle to open the side door of the van to let her exit and if the person(s) in the driving portion were incapacitated, she and the inmate would be locked in the van. She therefore grieves that the employer is not making reasonable provisions for her health and safety during the hours of her employment. At this point, I set out the various provisions of the law and Collective Agreement relied upon by the parties: The Occupational Health and Safety Act 14(2) Without limiting the strict duty imposed by subsection (l), an employer shall, (id take every precaution reasonable in the circumstances for the protection of a worker; - 2 - Article 18 of the Collective Agreement 18.1 The employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their effiployment. 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 Crown Employees Collective Bargaining Act, R.S.0 1980, c. 108 s.18 (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function without limiting the generality of the foregoing, includes the right to determine, (a> employment, appointment, complement, organ- isation? assignment, discipline, dismissal, suspension, work methods and procedures? kinds and locations of equipment and classification of positions; . . . 1 (b) omitted] and such matters shall not be the subject of collective bargaining nor come within the jursidiction of a board. s.19 (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement. - 3 - The Metropolitan Toronto West Detention Centre is a maximum security institution. The grievor's duties as those of any Correctional Officer (CO2) at the Centre involve escorting inmates in the Ministry vans mostly within MetropolitanToronto although she stated she had gone as far as Brampton. Since the West Detention Centre has inmates awaiting trial, inmates are also escorted to the Court Houses but that is a police function not done by CO2's. The frequency of escort duty for a CO2 is dependent on the "luck of the draw": it can vary from three times a day to once a month. In six years, the grievor has done escort duty about 40 times. The trip in the van takes anywhere from 15 minutes to three-quarters of an hour, one way. The driver of the van during the daytime is not a Correctional Cfficer. The vehicles are E'ord and Plymouth vans modified by the Ministry for escort purposes. There are two seats in the front where the driver sits. Behind him is a metal mesh segregating him from the rest of the van. In the portion behind the mesh are three bench seats which are flush against the left side so that there is a slight small space on the right side where there are either sliding doors or hinged barn doors. There is also a double door at the rear but this is permanently locked with meshing over the door windows. Inmates sit on the front bench seat and the Correctional Officers sit on the second bench seat behind the inmates. (See Appendix "A"). Inmates have handcuffs and shackles and get in first. The Correctional Officers then enter sitting behind them as described and the driver locks the side door from the outside before entering the driver's section. - 4 - At this point, we note that the grievor's concerns do not relate to being with an inmate, but to the dangers of a motor vehicle accident itself. The grievor related in testimony an incident where the van in which she was travelling was in a near collision on the Queen Elizabeth Way during rush hour when they were returning to the West Detention Centre with an inmate. At that time, she expressed her concern to the lieutenant in charge of the female inmate portion of the Centre about the danger. She proposed that the Correctional Officer sit behind a screen to be installed at the rear of the van with exit possible through the rear door. (See Apendix "B"). That suggestion was not accepted. Another possibility would be to no&e1 the van somewhat along the lines of vehicles used by bailiffs. The bailiffs are also employees of the Ministry of Correctional Services. They regularly transfer inmates among provincial correctional institutions. A drawing of a lay-out somewhat like the bailiffs' vehicles was filed as an exhibit (Appendix "C"). The bailiffs do not normally sit in the secured area behind the mesh screen. The screen in the proposal is farther back in the vehicle than in the CO vehicle permitting the addition of another seat behind the driver's seat and facing towards the right side of the vehicle. There is,a gate near the side doors in the screening which permits access from the driver's portion to the inmate portion. The grievor suggested that the Correctional Officer could sit in the,side seat behind the driver to keep check on the inmate(s) in the locked portion. The reason for the proposed inside gate is to permit access to the secure portion from the - 5 - driver's cab if there was a serious problem in the secure (inmate) portion. Subsequent to the filing of the grievance, the Superintendent of the Centre issued an Institutional Directive to all Correctional Staff, the text of which reads: "Effective immediately, all Shift Supervisors will instruct the officer or officers escorting an inmate(s) or young offender(s) outside the institution of the location inwhichthey are to sit while in the vehicle. This instruction is to be in writing and included with other written instructions on the use of the restraint equipment on the authorization for the inmate or young offender's absence (i.e. Medical Temporary Absence, Temporary Release for Recreation, etc.) Escorting, Using and Secured Vehicle In general, Shift Supervisors will instruct the escort officers to be located in the passenger's seat next to the driver when a secure Ministry vehicle is being used. However, in the following circumstances, the officer or officers will be instructed where to sit in the secure portion of the vehicle with the inmate(s) or young offender(s): 1. A male and female officer will sit in the secure portion on the vehicle when male and female inmates are being transported. 2. At least one officer will be instructed to sit in the secure portion of the vehicle when it is necessary to escort protective custody inmates together. 3. When an inmate or young offender requires two or more escort officers at least one officer is to be in the secure area with the inmate or young person. If the inmate or young offender is assaultive or severely disturbed, two or more officers are to be instructed to sit with the person being escorted. - 6 - 4. When the Shift Supervisor has specific reasons to designate the escorting officer(s) seating arrangements in a secure Ministry vehicle, the I escorting officer will maintain the inmate(s) or young offender(s) in sight at all times. I Escorts using Taxis Taxis are only to be used when inmates or young offenders are being transported singly and do not require more than one officer. In all cases the escorting officer and the inmate or young offender are to sit intheback seat. The officer will sit behind the driver. Any questions concerning this directive are to be addressed to the appropriate Senior Assistant Superintendent. R. D. Phillipson TO BE RJWLI AT MUSTER FIVE (5) CAYS. The grievor testified that the procedure of sitting in the front seat when there was only one inmate in the secured portion of the van was already the practice. In fact, the directive did not meet the grievor's concerns about being locked in the secure portion. The grievor agreed in cross-examination that her duty in escorting inmates was to observe them and that she needed a clear fiela of vision. When asked if the officer had to check the inmate while the van was moving if she could stand up while in back of the - 7 - van, she replied that it would not be a good idea if the van were moving and that she never has gotten up to do so. When asked whether her vision of the inmates would be reduced if sitting in the front looking through the screen at the inmates, she replied "slightly." Gail Dvorak is a Correctional Cfficer 2 at the Metropolitan Toronto West Detention Centre. She does escort duty out-of-town almost three to four times a month and to Metro two or three times a week. Normally there is one Correctional Officer per inmate being transported. They have transported as many as four inmates with four officers plus the driver. She also testified that if an officer stood up in the back she could be hurt. The officer can see whether an inmate moves around or bends over. If there is only one inmate being transported, she usually sits in the front with the driver. If the inmate in such a case acts up, her practice would be to tell the driver to pull over to the side of the road and she would then enter the secured portion of the van. She admitted that there is a problem seeing through the grill though the problem was in fact the back of the seat in which she was sitting. She has been concerned about her safety in the secure area if the driver should be incapacitated. She liked the arrangement as shown in Exhibit "7" because she could get up and look into the secured portion of the van. She testified that she was familiar with the bailiff's vans. She stated that there is no seat like the.one in Exhibit "8" behind the driver's seat, the metal grill is further forward, and there is no access to the back secton as suggested in Exhibit "8". The bailiffs carry mace. ) : - 8 - Tina Kurchak is also a Correctional Officer at the West Detention Centre and is a member of the health and Safety Committee. During her escort work, she was in a near-miss and like the grievor was concerned about the danger to her should the driver be incapacitated. She had heard of an accident with a'young offenders' van. Her opinion was that the proposal in Exhibit "8" would solve the safety problem David Olsen is a store keeper with the Ministry and president of local 517. He is a co-chair of the local health and safety committee and as such was informed of any accidents. Three officers made Workers' Compensation claims as a result of an accident around January 1988 involving a Ministry van. In April 19S8 one of the drivers was involved in an accident on Highway 401 involving a tractor-trailer. He had also seen the vans used by the bailiffs and they are similar to the drawing in Exhibit "8". The police vans that resemble the type used by the Correctional Officers at the West Detention Centre have two separate secure areas behind the driver's portion which is separated by a metalwallwith a viewing port and an access doorwayhatchto the middle secure area. He believed that the third secure area was for inmates who needed to be segregated from the other inmates. Olsen had brought to the attention of the Maintenance Superintendent and the Senior Assistant Superintendent Acting the structure of the bailiffs' vans and brought it up at the Health and - 9 - Safety Committee. In his opinion, the Exhibit "8" would meet their needs. lie did not believe a Correctional Officer should ride in the secure portion of the van. Such a change would not compromise the custody requirements. An officer sitting in the side seat in front of the screen as in the proposal would be able to watch the inmates and his or her vision would only be minimally obstructed. He is familiar with these vans from working in the loading area which is shared with admitting. He testified that the Workers' Compensation report indicated that in the young offenders' van involved in an accident one of the officers injured was riding in the secure portion of the van at the time. The Ministry called in evidence Van Erb the Institution Staff Training Officer at the West Detention Centre who has worked in various capacities including shift supervision and has for ten years been at the West Detention Centre. He estimated fromhis experience that between 120 and 130 inmates a month have to be escorted by Correctional Officers from the Centre. He testified that if there is only one inmate the officer would sit in the passenger seat next to the driver. Where the officer is to sit is set out on the Temporary Absence form. If there are two officers, one of them would be required to sit in the secure portion. The rationale for having an officer in the secure portion is to provide constant surveillance of the inmate(s). In the case of protective custody inmates, the officer is in the back to protect them from the other inmates if they have to travel in the same van. If there are dangerous inmates, the officers will often agree among themselves to - 10 - sit in the secure portion. The best preventative measure is the presence of the officer. In cross-examination, he stated he did not have as great concern with the officer sitting in the front of the van when there was just one inmate. He also admitted that an officer in the front could see the two inmates in the secure portion but there is a loss of security of the presence of the officer. It might be necessary to stop the vehicle for the officer to enter the secure portion. Doug Foulds, the Senior Assistant Superintendent, is currently in charge of the female unit at the Toronto West Detention Centre. He testified that when an inmate arrives at the Centre, often there is not a great deal known about the inmate as the West Detention Centre is principally responsible for inmates awaiting trial. This lack of information necessitates treating the situation as one of maximum security~. His view was that the proposal in Exhibit"8"did not add to or enhance the system in place given the requirements of care, custody and control. Each particular escort has to be determined on its own merits. The union argued that the Ministry, by its actions has violated Article 1.1 of the Collective Agreement in that it is failing "to. make reasonable provisions for the safety and health of its employees." In support of its position, it drew to our attention a number of Grievance Settlement Board decisions. In Gonneau and the - Ministry of the Attorney General (GSB 227187) the grievor sought damages against the Ministry for car repairs resulting from an - 11 - accident caused by ice on the employer's parking lot. Vice- Chairman Teplitsky rejected a Ministry argument that Article 18.1 did not create an enforceable obligation on the employer. Teplitsky awarded the damages claimed. At page 6 of the Award, he wrote: "In ='Y opinion, Section 18(l) literally construed imposes an obligation on the employer, the breach of which may attract a remedy in damages. A literal construction which gives meaning is preferable to a construction which would treat 18.1 as a mere surplusage. It would be a dangerous practice for arbitrators to give weight to speculation as an aid to construction in the face of language capable of a sensible literal meaning." The implications of Subsection 14(2)(g) of the Occupational Health and Safety Act were examined by Vice-Chairman Joliffe in OPSEU and the Ministry of Correctional Services (GSB 1252/85)., That case dealt with patrol methods at Millbrook Correctional Centre, specifically with a policy of having one officer enter the day room alone twice each hour during the ,evening much to the displeasure of some of the inmates who considered this time their OWL-I. Vice-Chairman Joliffe pointed out that subsection 14(2)(g) of the Occupational Health and Safety Act is binding on the Crown by virtue. of Section 2 of the Act. Furthermore, he found this a completes answer to the Ministry's argument that subsection 18(l) of the C.E.C.B.A. is paramount. That answer is "thatthe provisions of the O.H.& S. Act prevail over Section 18(l) of the C.E.C.B.A. Specifically, Section 14(2)(g) 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 - 12 - 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." The union submitted that there are two issues: (1) the onus is on the union to demonstrate that there is a risk and (2) has the employer taken reasonable precautions in compliance with Article 18 and the onus in that respect is on the employer. In the union's submission, it has shown that the fact of the officer's being locked in the secure portion of the van unable to get out in case of the disabling of the driver demonstrates the risk. There is no need to show an actual injury to the officer. Indeed, there was evidence of accidents involving vans. There was evidence of other arrangnents such as the bailiffs' vans and the police van. There was no evidence from other institutions to demonstrate that officers should be locked into the secured portion. If the inmate needs extra security, he should be transported alone in the secure portion with the officers in the front. The usual situation cannot require the officer in the secure portion; indeed there was evidence that inmates have even been transported in taxis. The Ministry argued that these are properly matters for it to decide under subsection 18(l) of C.E.C.B.A. In any event, if the Board has jurisdiction it should only act if there is an extraordinarily unsafe condition and not a merely theoretical one. The Ministry need take only reasonable provisions. It is not - 13 - required to make the situation absolutely safe. The Board was referred to a decision of Vice-Chairman Samuels (6SB 69/84). In that case the union grieved over the alleged unsafe situation -of a correctional officer in the back-end modules at Guelph Correctional Centre. The evidence showed the practices went back 20 years without a single incident. The Board called the risk "infinitesimal". After referring to the standard of "reasonable precaution" in the Collective Agreement the Board referred to Section 4 and subsection 20(2) of the Ministry of Correctional Services Act by which the Ministry is required "to provide for the secure custody of persons awaiting trial or convicted of an offence." Samuels goes on to state: "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. Proper planning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks." The Ministry in its argument emphasised the importance of having a Correctional Officer in the secure portion with an inmate. The danger is hypothetical and indeed no specific example of the alleged danger could be given. The vans are safety equipped and travel well-known and well-travelled routes: -assistance could arrive quickly. It referred the Board to a decision of Vice- Chairman Roberts (6SB 0335/85) for an example of the Board's refusing to act on theoretical dangers. I note however, that in that case the Board did order some changes in procedures. - 14 - The balancing test adopted by Vice-Chairman Samuels is in my opinion as useful a working test as can be found. The jurisdiction of this Board to deal with safety matters is also clearly established by the decisions discussed above. The Ministry has its obligations to discharge and the officers have their duties to perform. But, these must be done in an environment where the officer's safety has been reasonably provided for by the employer as required by Article 18.1. There are inherent risks that go with the job but a Correctional Officer is not required to meet unnecessary dangers or risks. The possibility of a road accident is always a very real possibility on today's roads. No evidence of that possibility was really even necessary. In fact, evidence of accidents involving escort vans was adduced. The possibility of being trapped in the secure portion of the van is not in any event merely hypothetical but well within the range of every day possibilities. The disabling of the driver is clearly a risk. It is important to note that other law enforcement officers including the bailiffs who are employees of this same Ministry do not normally ride in the secure portion of their vans. The Ministry candidly admitted that the various proposed modifications would not be expensive. The competing factor is the claim of greater security of inmates provided by the physical presence of Bn officer in the secure portion. But the evidence of the value of such presence is essentially a matter of degree at best and of opinion at worst. It is obviously not a factor with the bailiffs or the police who do not ride in the secure portion. It therefore seems to me that the balance should be struck in favour of improved safety for the 2 - 15 - Correctional Officers. The evidence showed that the inmates can be observed from the driver's portion and perhaps evenbetter under the proposal than in the common situation where the officer presently sits beside the driver, namely by having her sit behind the driver as suggested in Exhibit "8". The Ministry admitted that the cost is not a factor. Although the union did present various possible modifications to the Board, I am satisfied that the better approach at this point would be to remit the matter back to the Health and Safety Committee, where it stalled apparently pending this arbitration. The parties there can consult and devise a solution which will end the necessity for Correctional Officers to be locked up in the secure portion of the van while still allowing the Ministry and the officers properly to carry out their custod.ialciuties. This Board will remain seised of the matter in the event the parties are unable to agree and will, in that case, establish the means after further submission from the parties. DATED at Toronto this 10th day of February , 1989. /’ _Li’ C’/ .I “i ;((‘j;jy:,,> c/: <~ /- Thomas H. Wilson, Vice-Chairperson C. Milley, Member / (Addendum attached) i APPENDIX A APPENDIX B / 1 I ! ! 1 ! I 1 ! / I APPENDIX C ,L 3 j ! ADDENDUM I have joined with the Chairman in the award on the distinct understanding that the conditions under which the matter is being remitted back to the Health and Safety Committee are not mutually exclusive. That is to say, the solution which will end the necc- essity for Correctional Officers to be locked up in the secure portion of the van must be in conjunction with and conditional uponstill allowing the Ministry and the Officers to carry out their custodial duties. Otherwise, or in the event of disagreement the matter will again come before the Board. I think the above solution is not inappropriate because there are a number of factors which enter into a decision on whether a Corrective Officer should ride with the inmates. Observation is only one. Others include Security of the inmates and Security of,the public. In my view, the Board is not in possession of ' sufficient evidence or knowledge to substitute its judgement for that of the Ministry's Officers. In the circumstances it is proper that the parties be invited to again try and resolve the matter themselves. Respectfully submitted, - Member '