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HomeMy WebLinkAbout1988-0826.Union.90-08-24 O/VTAFfiO EMP~.O¥ES DE LA COUF~ON,VE GRI ANCE CgMMISSION DE SE LEMENT REGLEMENT OARD DES GRIEFS ~uNo~S ST~EET WESE ro~o~ro, O~TA~JO. MsG 1Z~- SUITE 2~ TELEPHONE/T}L~PHONE. RUE DUNDAS QUEST, TORONTO, (ONTARIOJ MSG ~Z~ - BUREAU 2100 (416) 59B-0~8 825/88 IN THE MATTER 'OF AN ARBITRATION ', Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before "~L-=.. :. THE GRIEVANCE SETTLEMENT BOARD Be tween: OPSEU (Union Grievance) '·' ~ ' Grievor .... - and - The Crown in Right of Ontario <Ministry of Correctional Services) Employer Before: D.H. Kates Vice-Chairperson F. Taylor Member D. Montrose Member For the Grievor: R. Stephens.on Counsel Gowling, Strathy & Henderson Barristers & Solicitors : For the Employer: J, Benedict Manager ' Staff Relations and Compensation Ministry of Correctional Services Hearing~: February 21, 1989 July 20, 21, 1989 Decision In this grievance the trade union comp]ains that the employer has violated Article 18.1 of the collective agreement when it failed to assign an adequate number of correctional officers as escorts for the trmnsport of inmates at the Millbrook Correctional Facility to various destinations outside the facility. As a result of these violations it is alleged that the health and safety of the correctional officers and other bargaining unit employees assigned to perform's~ch escort duties have bee~ jeopardized. Accordingly, an order is requested directing the employer to adhere to the standard of assigning the appropriate ratio of correctional officers' to the numbers of inmates transported in the discharge of such escort duties. Article 18.1. of the collective agreement re~ds as follows: The employer shall continue to make reasonabl~ 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 health and safety of all employees. According to the trade union the ratio'of correctional officers who should act as escorts in the transport df inmates is approximately one correctional officer for each inmate. When only one inmate is transported the trade union argues that two correctional officers should be assigned to'maintain a proper safety standard. It is important to observe that the Mi'nistry with respect to inmates housed at its Millbrook Correctional Facility adheres subs{antially to the ratios suggested by the trade union in most instances When inmates are moved out of the facility. It is .acknowledged that the Mitlbrook Correctional Facility is a maximum security institution housing the more potentially: dangerous inmates than are housed at other correctional facilities. Indeed, a large number of the inmates at Millbrook require "protective custody" entailing a more exacting monitoring of their movements within and outside the institution. The employer suggested that b~sed on the circumstances of a particular movement outside the institution it might very well exceed the ratio of correctional officers to inmates in order to ensure a safe and secure trip. The employer however rejects the principle that there ought to exist "a hard and'fast" rule with respect to the ratio of correctional officers to inmates that ought to be adhered to in every instance of a voyage outside the institution. The employer indicated some acceptance of the notion that the inmates at the Millbrook Correctional Facility might constitute, depending on the circumstance, a potential dange~ to the safety and security of the correctional officers who have been assigned escort duties. It died not fo'llow, however, that a deviation 'from the norms hitherto advanced by the trade union as appropriate for ensuring such safety constitute an unwarranted risk. Indeed, the employer provided statistics indicating that over the thirteen month period that preceded the grievance the Employer departed from the norm suggested by the trade union on five occasions. More specifically, of the approximately 818 trips outside the Millb~ook' facility that occurred during tha. t period the employer deviated from the required ratio on only 5 occasions. It is fair to say that the trade union alleges that those five occasions constituted an unnecessary risk to the health and safety of the correctional officers and' the other bargaining unit employees who were assigned escort duties. In evidence the Board heard three situations where the. trade union maintains the employer, as aforesaid, violated'i~s responsibilit{es under Article 18.1 of the collective agreement. Before describing those particular situations, it is perhaps relevant to address the safety precautions, apart from escort services, that' are taken to ensure the safety and security of a trip outside the Millbrook f~citity. ' ' It is common ground that all inmates taken on a trip outside the institution are appropriately fastened wi~h leg restraints and/or handcuffs or' both during the course of a trip in accordance w~th the appropriate standing orders. Moreover, the vehicle used to transport the inmates is appropriately enclosed during the course of the trip in order %o rest'riet inmate movement to a minimum. Radio communication is maintained while in ~the van with the institution and pOlice agencies so that-if difficulties do arise assistance may be summoned on a moment's notice. The trade union does not complain in these proceedings that the employer has compromised the safety of its employees on account of any inadequacy in the ~rocedures for the securing of inmates or the security of the van. However, it is important to stress that the number of escorts assigned to a particular trip is only one aspect of the safety and security procedures that are followed to ensure that a trip is without incident. Because the employer requested for obvious~safety and security reasons that a detailed description of those procedures be somewhat circumscribed w~'feel no requirement for purposes of these. proceedings, to repeat the rather lengthy evidence that was adduced. The five incidents tabulated by the employer where a deviation from the"accepted" norm occurred fell into two exceptional categories. The first related to tripsL involving the transport of disturbed inmates, perhaps with serious , o 'psychiatric problems,· from the institution to a hospital facility where medical attention is' intended to be ,administered. In those instances, the employer, holds the opinion that, given the nature of the inmate's particular ? problem, a smoother, uneventful trip would be fostered if 'the inmate were accompanied by a member of its "professional" staff, a psychologist or social worker, instead of a correctional officer. And, in most cases, where the professional employee who is familiar with the inmate is assigned he or she would, have a "calming" influence that would enhance the safety of the trip. Indeed, it was suggested that the assignment of a correctional officer might, in those cases, constitute a disrupting influence on account of the "authority" figure represented by his or her uniformed presence. - 5 - Another example, that is akin to the above situation where the employer may deviate from the norm~ is ~a situation where the inmate has been placed on a Temporary Absence Programme (TAP), In those instances an ~nmate for compassionate reasons due, for example, 'to some family re~ated event, such as a funeral or sickness of a parent, may be ~ranted a pass.to visit. In those cases mn inmmte might be· released temporarily on his undertaking that he or she will return within the prescribed deadline. In other instances, the inmate is granted a temporary absence pass but prudence dictates that he be accompanied by. an escort in the usual manner. However, rather than assign a correctional officer to accompany the inmate the employer will assign a member of its professioJal staff, a social worker, to make the trip. The employer conceded that unlike the correctional officers, professional staff do not have the same training in the techniques of restraint and self-defence should an inmate outburst occur on the trip. On the other hand, professional staff by virtue o.f their training may hold other skills mud strengths that would enhance the safety of a trip. For this reason the trade union does not object to professional staff being assigned escort duties so long as the proper ~atio of~ correctional officers are maintained. Mr. W. Cooney, Deputy Superintendent, Millbrook Correctional FacilitY, stated that the employer takes appropr, iate precautions to ensure the safety and security of a trip should it decide to deviate from the 'norm, In the case of the trip involving ~ disturbed inmate afflicted by medical related problems (who might readily fall under the definition of "potentially dangerous") there occurs a multi-disciplinary meeting amongst the correctional facility's professional staff. Those attending the meeting are immersed in the inmate's history and are acquainted with his problem. On the basis of that knowledge a recommendation is made to the Superintendent (or in his absence the Deputy Superintendent) with respect to the escort requirements of the trip. And, of course, Mr. Cooney related Ghat he is disposed Go follow that recommendation based on the knowledge given by those who are intimately acquainted with the inmate in a professional capacity. It suffices to say, that a similar t'ype of meeting occur~ amongst the facility's staff in determining whether an inmate should be given a temporary absence pass to attend a family related or other legitimate event outside the'facility. .And, in a like manners the committee will decide on the assignment of an appropriate escort based on its intimate knqFledge of the inmate. The Second type of situation where the employer might depart from the ratio of correctional officers to inmates is when the correction~ officer is ~sked to perform ~'bailiff's duties".. That is to say, where because of a shortage of staff, correctional officers, at the Millbrook Facility might be summoned.to transpovt convicted criminals after sentencing from the holding facility where they have been retained to the Mi~ibrook Correctional Centre. In the normal case an' appropriately equipped bus would transport approximately thirty-six passengers at one time. That bus would be staffed by three bailiffs. One bailiff would perform the driver's duties while the other two discharged escort functions. The trade union insists that when correctional officers are summoned to perform bailiff's duties in the van normally used to transport inmates the employer is duty'bound (irrespective of the aforesaid norm for bailiffs) to adh'ere to the one to one ratio described above. The three incidents described by the trade union in evidence as constitutin~ a violation of Article 18.1 will now be briefly addressed. On agreeent of the partiesi':'the Board will refrain from identifying the inmates and the particulars o~ their .problems who were involved in these incidents. In the first ~incident the employer resolved to dispatch' in the employer's van two inmates to London, Ontario, from the Millbrook Facility. It assigned Mr. Nell Jilesen, correctional officer who performs relief driver functions, fo drive the van. It also assigned Mr. E.H. Bossin, Psychologist, to perform escort duties with respec~ to ~he inmates who beinK transported. Mr. Bossin had been assi2ned the two inmates for ~reatment durinf their tenure at the facility and was professionally involved in. their rehabilitation and care. The first inmate was clearly identified as havin~ serious medically related problems. His record'indicated that he could in certain circumstances represent a danger to himself as well as others in his immediate surroundings. The inmate's sentence was about to expire but he had agreed prior to his release from the Millbrook facility to u~dergo a medical examination by the psychiatric staff at the London Psychiatric Hospital (located within the inmate's catchment area). An appropriate meeting was held amongst the professional staff who were responsible for the inmate while at the facility. Arising out of that meeting the recommendation was made to assign Mr. Bossin, for reasons that appear obvious, to accompany the inmate rather than a correctional ~fficer. On the same trip a second inmate was assigned to the ~esponsibility of Mr. Bossin. The inmate's mother had died and he was granted a temporary absence permit to attend her 'funeral at London. Mr. Cooney asked Mr. Bossin whether he felt comfortable in accompanying both inmates to London. Because Mr. Bossin was responsible for them in a professional capacity he stated he was perfectly at ease in discharging the escort function. Mr. Bossin testified that the three hour trip was without episode. Mr. Jileson complained of minor dislocations during the meal and toileting breaks that might have been avoided had an additional correctional officer been assigned to the trip. Mr. Jileson described any number of case scenarios that couJ. d have occurred during the trip that ran the gamut to escape attempts to vehicle breakdown to third party ambushes of the van while in transit. Obviously, had such situations.transpired then the trip might have been more eventfal than had actually been the case. It is worth repeating.however that at all material times both inmates were properly secured by handcuffs or leg irons while in the van, as aforesaid, and represented no immediate security risk. indeed, during the meal and toileting breaks, when they had .to be released from the van, the escort to the restaurant was conducted in a more controlled and regulated manner. Even so, Mr. Jiteson indicated that numerous difficulties might have arisen but could have been avoided had another correctional officer been assigned to the trip. In that regard, why Mr. Jileson felt compelled to take the meal and toilet break at McDonald's Restaurant (as opposed to a more secure location) is a question that was not seriously answered during the course of his evidence!! The second episode that was related pertained to the transport of. an inmate from the Millbrook Facility to the Mimice Detentio~ Centre. The inmate was on a TAP and as part of t'hat programme he was to be permitted to attend 'his normal 3ob while being supervised out of the Mimico facility. The balance remaining in the inmate's sentence was expected to be served in th~s manner. It goes'~'without saying that such inmates must have exhibited model behaviour while at the facility in order to be extended this privilege. And, indeed, given t'he unlikelihood of the inmate causing a problem the employe~ did not assign a correctional officer to escort him on the trip. Rather, the employer, after appropriate consultation, decided to assign Mr. Roy~ a social worker, who had dealt with the inmate as a case client. The trip transpired without incident. The third incident recounted in evidence pertained to the occasion When two ~orrectional officers were assigned bailiff's tasks w~en asked to escort nine ~9) inmates in the facility's van after sentencing from the Toronto East Detention Centre to Millbrook., The one officer operated the van while the other monitored the activities of the inmates. The Grip occurred without incident. The trade union complains, however, that the employer was duty bound under Article 18.1 to maintain the one to one ratio. Obviously that requirement would have exceeded the nor~-reserved for the performance of bailiff's functions. It appears that in order to discuss fully and fairly the health and safety issues raised by the trade union in the context of Article 18.1 of the collective agreement, it is necessary ~o ask and thereby answer the correct question. There is no doubt in our minds that the employer can always resort to means and techniques for a safer and more secure environment in its discharging the responsibilities of operating and managing its correctional facilities. And, in many of the questions put by counsel for the trade union to the employer's witnesses, Mr. Cooney in particular, those questions were premised on what might Nave been a safer and more secure arrangement"for the transport of i.nmates to and from the Millbrook facility. And, indeed, we are' prepared to accept, for argument's sake, that additional correctional officers assigned to a particular escort might constitute a safer and more secure trip. We would hasten to add, however, that the employer might very well suggest, as it did in this case, 'that assigning professional staff, particularly those responsible for the treatment and care of the inmate, might also contribute to a safer and more secure way of accomplishing a trip without incident. What appears to us to be the important question to ask is whether the employer in deviating from the desired norm or ratios caused'an unnecessary o~ unacceptable risk to the safety and security of the 'members of the bargaining unit involved be they correctional officers or professional staff, What the employer demonstrated in response to the union's allegations was that it has an established procedure for discussing each situation where a deviation might occu~ at a meeting of 'its professional staff who weigh the consequences with r~spect to the type of escort service required and Lhen make an appropriate recommendation~ In other words, the relative risks with respect to safety are addressed and a recommendation is made so that the Superintendent of the Millbrook Facility-or his Deputy .may reach an informed decision. In the absence of persuasive proof to the contrary, we as a tribunal can discern no violation of Article 18.1 where the employer's decision making with respect to the type and nature of the escort service that is assigned is resolved in tha't manner. Indeed, there i's nothing in the collective agreement or the arbitral jurisprudence which suggests that only a fixed ratio of correctional officers relative to the inmates who are transported would constitute in all situations dompliance with Article 18.1. .Rather, the jurisprudence suggests that a more flexible standard is contemplated for purposes of ArtiSte 18.1 where, for example,.in The OPSEU and Crown in Right of Ontario'(Ministry of Correctional Services) 69/84, 70/84 decision dated April 24, 1984 (Samuels), it was pointed out that "it is necessary to balance the safety of employees against the care and custody of th'e inmates" in adopting appropriate measures for compliance with the collective agreement. And in our view so long as the employer maintains the aforesaid process of addressing the attendent risks in balancing the necessity for the safety of its employees agkinst the care and custody of the inmates'involved then it will be incumbent upon the trade union to demonstrate that the balance, having regard to.those risks, has been improperly placed. And to this end, the trade union adduced no persuasive evidence to demonstrate that. an inappropriate risk to the safety of the employees was assumed in either of the.situations that were described in evidence. As hitherto indicated we as lay persons on a tribunal may readily be swayed as to what might constitute ·safer procedures. However, we require cogent, dispassionate and objective proof that an "unneces-sary" risk for extraneous and irrei'evant considerations has indeed been assumed. For example, where 'is it "carved in stone" that only the ratio of one,correctional officer to one inmate represents the only acceptable balance for ensuring the safety of the employees that are assigned escort duties? What other maximum security institution, similar in nature to the Millbrook Correctional Facility, adheres t°` that standard? Why is any - 13 - deviation from that standard, provided there is a proper weighing of the risks, an inappropriate safety measure? Would the employer be alleviated from its responsibility under Article 18.1 if the situation required more correctional officers than the desired r~tio? The trade union made absolutely no effort to provide an answer to any of the foregoing questions. Rather, it suggested that the deviations from the required ratio irrespective of the considerations that were weighed in the three incidents hithert~ described constituted per se a violation of Article 18.1. We have only been satisfied, however that the employer might very well have resorted to additional measures to eliminate the risks to the safety and security of its employees in order to achieve a particular objective. But that is not'the appropri'ate question that we are required to answer. We have yet to be convinced, where it was the trade union's duty to do so, that any of the incidents recounted above constituted an unnecessary or avoidable risk to the safety of its employees merely because, for perhaps extraneous reasons, the employer decided to deviate from a particular norm or standard. It therefore has failed to demonstrate a violation of Article 18.1 of the collective ~greement. We do not suggest, however, that. with different- evidence in another circumstance the employer might tip the balance to ~the prejudice of the employees' entitlements under Article' 18.1. For all the foregoing reasons the grievance is denied. - 14 - ~ Dated this 24th day of August 1990. ~< David H. Kates , Vi-ce-Chairperson F. Taylor, Member D. Montrose, M~er