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HomeMy WebLinkAbout1988-0230.Moulton.91-10-07 ONTARIO EMPL 0 Y~'S DE LA COURONNE CROWN EMPL 0 YEES DE L 'ON TARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, SUSTE 2?00 TORONTO, ONTARIO. tVt5G 1Z8 TELEPt4Ot4E/TEL~P.~ONE: 14~6) 326~388 ;80, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARtOJ. M5G 'IZ8 FACS;MILE;TEL~'COPtE .' {4t6J .326-'1396 230/88 IN THE MATTER OF AN ARBITRATION Un,er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Moulton) Grlevor - and - The Crown in Right'of Ontario (Ministry of Correctional Services') Employer BEFORE: M. Watters Vice-Chairperson J. McManus Member P. Camp Member FOR THE S. Ursel GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE C. Slater EMPLOYER Senior Counsel Legal Services Branch Management Board of cabinet HE]%RING September 6, 1988 April 28, 1989 Noven~b. er 7, 17, 29, 1989 August 1, 1990 October 29, 1990 November 7, 1990 June 28, 1991 This proceeding arises from the individual grievance of Mr. Lloyd Moulton dated April 16, 1988. The grievor is a Correctional Officer at the Elgin-Middlesex Detention Centre (EMDC) located in London, Ontario. The material part of his grievance reads: "STATEMENT OF GRIEVANCE I grieve that my health and safety was jeopardized while working the East Hall on the 29th of March, 1988. SETTLEMENT DESIRED When Parole Board holds hearings, that an extra officer be called in and assigned to the East Hall for the security of the institution and the health and safety of the East Hall Officer. " As stated therein, the grievor's concern related to working conditions in the East Hall during the conduct of Parole Board hearings. Subsequent to the filing of the grievance, these hearings were moved to a room in the foyer. It was agreed by counsel that their interests would be served by this Board determining whether the conduct of such hearings at the latter location resulted in an unsafe working condition for purposes of article 18.1 of the collective agreement. That provision states: 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 grievor and Mr' Paul Lane gave evidence on behalf of the Union. The former has been employed as a Correctional Officer at EMDC since 1980. The latter gentleman has eight (8) years experience within'the institution. He also serves as the President of the Union Local. Mr. Ian Starkie and Mr. Larry Payne presented evidence for the Employer. At the time material to this dispute, Mr. Starkie was the Superintendent of EMDC. Mr. Payne holds the rank of Shift Supervisor. Both of these individuals have correctional experience in excess of twenty (20) years. A considerable amount of evidence was adduced by the part]es over the course of many days of hearings. The Board has not found it necessary to reproduce the bulk of same in this Award. Rather, we have elected to focus pri'marily on that part of the evidence relating directly to the issues raised by the grievance. F~rther, at the request of the parties, we have omitted any reference to data which might undermine the security of the facility. Nevertheless, this Board has considered all of the evidence submitted to us in fashioning our decision. The Board also had the opportunity to tour EMDC in the presence of counsel. We found this to be of real assistance in the resolution of the issues raised in this proceeding. EMDC is a maximum security institution for adult males, adult females and young offenders. On admission, the adults are 2 classified as maximum, medium or minimum security inmates depending on a number of factors including charge, status, prior history and conduct. The inmates are housed in separate units according to their classification. A deliberate effort is made to minimize the contact between maximum security inmates and the other categories of offenders. At the time of the grievance, EMDC had an operational capacity of approximately three hundred' and fifty (350) inmates. The original design capacity is one hundred and eighty (180). As of the filing of the grievance, the institution was staffed by one hundred and thirty-two (132) Correctional Officers. Twenty (20) of this group were unclassified officers. The balance of the officers were part of the classified complement. The Ontario Parole Board holds hearings at EMDC in respect of inmates who are generally serving sentences of between three (3) and nine (9) months. Additionally, it reviews parole I applications from inmates housed at other regional facilities and from persons residing in Community Resource Centres. These latter two (2) groups of applicants travel to EMBC for purposes of having their applications heard. We were initially informed that'the Parole Board conducts hearings at EMDC on one (1) day each month between the approximate hours of 9:00 a.m. and 3:30 p.m. Mr. Payne, in his evidence, led us to believe that the Board may attend on a more frequent basis. Given our assessment of this case, the discrepancy is immaterial. 3 .The Parole Board interviews each of the applicants. Thereafter, the inmate is asked to vacate the hearing room so that the Board may discuss the merits of the request. The affected inmate is subsequently summoned back to the hearing room to learn of the Board's decision. After being informed of the disposition, the inmate leaves the room. Ultimately, they are returned to their unit, The Board then proceeds, to consider the next application in the same fashion, We were advised that the Parole Board considers about six (6) applications per day, normally sits as a panel of three (3) with one (1) person being the Vice-Chair. In the past, many of the Board members had prior correctional experienge. This may no longer be true as an attempt has apparently been made to increase civilian input in the parole granting process. At the date of the grievance, the Parole Board hearings were held in the-Library which is accessed by way of the East Hall. As noted above, the hearings were subsequently shifted to a'room in the foyer area. One (1) Correctional Officer is posted to the East Hall. Another is posted to the foyer. It was the position of the Union that an additional officer should be posted to the. area in which the hearings are conducted for the period of time that the Parole Board is sitting. To be clear, the Union was not asking for a permanent posting. Its claim was largely premised on the fact that the East Hall and foyer areas are high traffic zones within the institution. The Union, in substance, asserted that-the officer's ability to control this traffic was diminished during the Parole Board sessions. It was submitted that this lack of control could permit the mingling of various categories of inmates. It was further suggested that it could lead to the exchange of weapons or other contraband materials. From the perspective of the Union, these risks would be removed by the posting of another officer to the hearing room area~ The Board accepts the fact that both the East Hall and the foyer are areas of high .traffic. Inmates, staff, and other professionals proceed through these areas on a regular basis for reasons related to the operation of EMDC. Nevertheless, we are satisfied that the existing officers possess the ability to anticipate and control the flow of such traffic. In terms of the East Hall, the posted officer can communicate by radio wi'th the officers in the minimum and medium security units so as to instruct them to suspend the traffic flow towards the East Hall. Given that the East Hall Officer controls the keys for the doors leading into the hall from the aforementioned units, it is within their ability to stop traffic from that direction. Further, the East Hall officer may engage radio or visual contact with the officer in the control module. That module is in the foyer area but has a line of vision down the East Ha]]. /he module officer controls the electronic doors at the west end of the East Hall. They are consequently in a pos.ition to stop traffic from entering into that hallway from the foyer should 5 that step be required. As of August 1988, the East Natl officer could also control the door leading to and from the Gym. With respect to the foyer, the officer assigned is able to control the traffic by requesting that the officer in the control module stop entries from the East and South Halls, the Young Offender Unit and the Visiting Areas. This can be accomplished by virtue of their control over the operation of the electronic doors. This initiative would'likely be coordinated'with the respective hall officers. We note also that the officer posted i'n the foyer controls the keys to the Gym and Visiting Areas. The officer would, therefore, be able to further limit the flow of traffic in the area should that prove necessary. .In summary, the Board is satisfied that the two (2) Correctional Officers in question can control,traffic in either the East Halt or the foyer. The grievor and Mr. Lane virtually conceded this ability. From all of the evidence, it would seem that there is an obligation on officers posted in these areas to ensure that traffic does not reach a dangerous level. The Board, simply put, has not been persuaded that an additional posting is required for purposes of traffic control. Further, as is described below, we believe that other remedies will more effectively confront the inadequacies existing in procedures relating to Parole Board hearings. In our judgment, the assignment of supplementary help is a. reasonable response to any unanticipated event arising in the area of the Parole Board hearings. During the course of the evidence, it became clear that the Parole Board releases inmates into the foye~ area, and formerly into the East Hall, without'advance notice to the officer posted to that location. This occurs at two (2) distinct points in the process. Firstly, applicants for parole are released while the Board considers the merits of their case subsequent to the interview. Their deliberations may extend to fifteen (15) minutes. Secondly, inmates are again released into the hallway after the decision on their application is announced to.them by the Parole Board. We accept the evidence of the Union to the effect that these inmates are routinely'released without any advance notice being given to the posted officer. Indeed, it is possible that the Correctional Officer would not know of their presence in the area if they were attending to certain' of their other responsibilities. This possibility clearly exists in the foyer given the existence of certain blind spots. In our judgment, this unannounced release of inmates into a high traffic area constitutes an unwarranted and unreasonable health and safety risk to the officers concerned. We find that the Parole Board should be required to advise the officer in advance of their intent to release an inmate into the hallway. This wi]] permit the officer to be present at the time of release. They will then be in a position to exercise their judgment as to how that inmate should be held or monitored while ~bey remain in the area. The Correctional Officers are presently equipped with walkie-talkies for communication purposes. It may be possible ko provide same to the Parole Board so that they may communicate with the hall officer prior to the release of the inmate. The Board heard evidence that all of these radios operate on a single frequency and that several' discussions may therefore overlap. As a consequence, it may not be feasible to provide this form of communication device to the Parole Board. In any event, we leave it to the parties to implement an appropriate system to ensure that the Correctional. Officer is advised in advance of the Board's intent to release an inmate from the hearing room. A secure holding cell is located in the foyer area. A similar cell was constructed in the East Hall subsequent to the filing of the instant grievance. We are confident that the availability of the cell provides the officer with the ability to hold the inmate in a secure fashion pending, during, or after their hearing before the Parole Board. The use of the holding cell should permit the officer to engage in their other responsibilities without the need to worry about the potentially unmonitored movement of inmates. It should also allow the officer to more fully observe and control other inmates passing through the hallway while the Parole Board is sitting. In our judgment, the holding cell should be available for use whenever the Board conducts hearings at EMDC. 8 A policy presently exists at EMDC pursuant to which the Parole Board is to advise the Shift Supervisor if they are about to render an unfavourable decision in respect of an inmate who may be inclined to act out as a consequence. In that event, either the Shift Supervisor or another officer i$ to provide assistance to the posted officer. This policy is not covered by a standing order. However, its existence recognizes the real possibility that certain inmates, unhappy with the parole decision, may pose a risk to the officer in the hallway and/or to others in the institution at the time. tt was the evidence of the Union that the Shift Supervisor was not always available and that the policy was not viable as a result. In many respects, this assessment was confirmed by the evidence of Mr. Payne who testified that he was in his office for only forty percent (40%) of the shift. If he was unavailable to receive the call from the Parole Board, no one else would be assigned to the task. Without doubt, this gap could defeat the intent of the practice. Further, from the evidence of Mr. Starkie, it seems possible that not all members of the Board may be aware of the procedure. In view of the foregoing, we think it appropriate that the Employer take the necessary steps to ensure that such a back up is available when requested. We also require that the Parole Board be fully acquainted with this policy. It was the further position of the Union that the Correctional Officer posted to the area of the Parole Board g hearings be a member of the classified staff unless and until the unclassified receive training similar to that provided to classified officers. At the t~ime of the grievance, the unclassified officers received a lesser form of training which consisted primarily of in-house orientation and on-the-job experience under the supervision of more experienced officers. /hey were not, iD contrast to the classified officers, given the more extended training then offered at the Alymer Police College. In April, lg89 the Employer and the Union agreed that over the course of time both groups of officers would receive the identical training. As of the date of hearing, at least three (3) unclassified officers had taken the additional training. After considering all of the evidence, the Board is unable to find that the differentia] training constituted a health and safety risk during periods in which the Parole Board was sitting. We were not persuaded that evidence exists to show a nexus between the training offered %o unclassified staff and some specific and identifiable risk. The 8card also notes that staffing in the foyer was provided exclusively by classified officers who preferred the lodger twelve (12) hour shifts. While unclassified officers were posted to the East Ha]], they were assigned there by the Sh~ft Supervisor who considered, inter alia, their experience and ability. Ultimately, this 8card has not been convinced that the differentia] t~aining amounted to a rea] health and safety concern meriting our intervention under article 18.1. Nonetheless, we do commend the parties for the agreement reached in respect of unclassified training. That training can only serve to improve the overall health and safety conditions within EMDC, Considerable evidence was presented with respect to inmate travel through the institution. Maximum security inmates are escorted by Correctional Officers. The practice with respect to minimum and medium security inmates has varied over the years. Both at the date of grievance and at present, these inmates move thqougb the facility on travel slips. The practice of having such inmates escorted ceased in mid-1989 when the maximum area at EMDC was reopened, We were informed that float officers are available for either escorting or providing other forms of supplementary assistance should the need arise. While the Union expressed some concern as to the adequacy of the travel practices, the grievance in substance did not focus on this issue. The Board is therefore mot prepared to assess such practices in isolation. In the context of travel during Parole Board hearings, we are satisfied that the posted officer has the requisite degree of control by virtue of the resources and abilities referred to earlier is this Award. The Board was told of only one (1) incident arising during the course of Parole Board hearings. That situation did not result directly from the types of concerns raised in this grievance. Both parties appeared to agree that evidence of inmates acting out while awaiting, or after, their hearing by the Parole Board was minimal. It was argued by the Employer that the lack of incidents was consistent with a reasonably safe workplace. Indeed, counsel suggested that inmates attending before the Board would be on their best behavior so as not to jeopardize their chances for parole or earned remission. In contrast, the Union emphasized that it wished to prevent disturbances from arising in future. Clearly, the lack of past incidents is not conclusive proof that a health and safety risk does not exist. In cases of this nature, the Board must carefully review all of the facts to , determine whether the Employer has made reasonable provision for the safety and health of its employees during the hours of their employment. In this regard, there is no obligation on the Employer to guarantee an employee's safety against every possible risk no matter how remote the possibility that it wilt occur. Similarly, 'it is not enough to show that the granting of a remedy might improve safety within the workplace. Rather, the Union must establish that the working'conditions suggest a real or serious possibility of harm: see OPSEU (Union) and MCS, 69,70/84 (Samuels); OPSEU ~Union) and MCS, 826/88 (rates). In this instance, after considering all of the facts and submissions, we have concluded in summary that: 12 fi) the Employer has taken reasonable precaution in respect of staffing of the areas in which the Parole Board hearings are conducted. The Union is not entitled to an order that an additional Correctional Officer be posted to the areas in which such hearings are held. Further, we are unable to find that the differential training described above creates a significant health and safety risk. (ii) the lack of effective communication between the Parole Board and the posted officer with respect to the release of inmates constitutes a real risk to the officer and, possibly, to others in the immediate area. The system of communication is to be improved to ensure that the officer is made aware in advance of the intended release of the inmate from the hearing room. (iii) steps are to be taken to ensure that the Shift Supervisor is able to provide a back up officer when requested by the Parole Board in cases where it anticipates problems arising from a negative decision on an application. The Parole Board members are to be informed of the policy. (iv) The method for improving communications as required by paragraphs (ii) and (iii) is left to the parties. The Board retains jurisdiction'in the event difficulties arise in the implementation of this Award. fy) To the extent that the evidence suggests the holding cell is not always available, the Employer 'is to take the appropriate steps to ensure it is available to the Correctional Officer during · periods of Parole Board hearings. As noted previously, the Parole Board hearings were moved from the East Hall to the foyer area after the filing of this grievance. The parties wisely agreed to expand the grievance to include the new location. We are satisfied that while the location changed, most of the central health and safety concerns 13 continued to exist. Our decis on is therefore applicable to both the foyer and the East Hall. In our judgment, article 18.1 of the collective agreement was contravened at both locations. While we have not made it part of our order, we would urge the Employer to consider providing a key to the hearing room to the posted officer. We also recommend that thought be given to installing an alert button in the hearing room for'use by the Parole Board if necessary. For all of the above reasons the grievance, as expanded, is allowed in part. Dated at~m~l~l' ,Ontario this 7th day of ~r_~m~r ,1991. M.V. Watj~e rs Vice-Chairperson J. McManus Member P. Camp 14