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HomeMy WebLinkAbout1989-1246.Haynes.90-09-06 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L~ONTARIO GRIEYANCE COMMISSION DE SETTLEMENT REG/EMENT BOARD DES GRIEFS 1~0 DUNDAS STREET WEST, TORONTO. ONTARIO, MSG 1Z8-SUITE 2100 ' TELEPHONE/TELePHONE 180, RUE DUNDAS OUEST, TORONTO. (ONTARIO) MSG 1Z.$ - BUREAU 2100 (416) 598-0688 1246/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Haynes) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and - B. Kirkwood Vice-Chairperson J. Carruthers Member I. J. Cowan Member FOR THE B. Rutherford GRIEVOK Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J. Benedict EMPLOYER Staff Relations & Compensation Human Resources Management Ministry ef Correctional Services HF_~%RING: February 15, 1990 May 7, 1990 Page DECISION The grievor alleges that the Ministry violated article 18.1 of the collective agreement by not making reasonable provisions for her safety and health by not requiring every inmate at the Elgin Middlesex Detention Centre, to be showered, wheneger admitted, contrary to the Ministry of Correctional Services Act, Regulation 649, Section 7. The inmates are categorized for the purposes of admission into one of three categories (1) newly admits (those who are being admitted for the first time for a particular offence); (2) in transits (those inmates who have been processed ~hrough the initial admission procedures and who are being brought in and transferred from other institutions and who are usually brought to the Elgin Middlesex Detention Centre on a temporary basis); and (3) intermittence (those inmates who have been processed through the original admissions procedures but who have been allowed to complete their sentence on the weekends thereby allowing them to continue to work during the week). The intermittence usually work during the week and are admitted Friday evenings and leave the institution on Monday morning. On July 24, 1989, Chris Cooney, a Correctional Officer spoke tO the grievor as the grievor was a union steward, and complained that no in transit inmates were being showered. At the time that the grievance was filed the grievor was a Correctional Officer 3, red circled to a Correctional Officer 2 working in the female segregated unit. The grievor attended Unit 1 where Officer Cooney was working and saw two inmates in street clothes with dry hair. -~ Page 3 /. She attempted to resolve the issue by speaking to the Admitting and Discharge Supervisor John McCoubrey. Officer McCoubrey recalled that there was some discussion over the incident although he had no recollection of the de%ails. The grievor then brought the matter to the attention of Lieutenant Runciman. She showed him Regulation 649, Section 9 of the Ministry of Correctional Services Act. As a result Qf their discussion, Lieutenant Runciman ordered Sargeant Lockwood to ensure that all inmates upon admission whether for the purposes of in transit custody, intermittent custody or permanent custody were to be showered. On July 28, 1989, the grievor became aware that not all admitting and discharge officers' were instructed to have all inmates shower on admission,, and she submitted an occurrence report outlining the situation. On July 28, 1989, the Superintendent, Mr. Starkie issued a ,ew standing order, amending the former orders, by requiring only "newly admitted' inmates to shower. Mr. Starkie claimed that he never saw the grievor's report, but issued the new order as the institution was under work-to rule. On August 12, 1989 the grievor filed t~he grievance that 'is before us. '~ The Union's counsel in her opening address submitted that the g~ievance was not intended to be construed as a group grievance, but in her closing argument, she submitted that the Board could treat it as a union grievance. Page 4 It was the Ministry's position that the grievance was a policy grievance disguised as an individual grievance and submitted that the board has jurisdiction to deal with the grievance only as an individual grievance. The first issue which we must deal' with is the categorization of the grievance. The grievance stated: I grieve that management is violating Art. 18.! by not reasonably providing for my health and safety contrary to the Regulations 649 Sect.9 Management is not ensuring each and every admitted inmate is bathed. I desire immediate compliance with Reg. 649 s. 9. I desire $4.00 for each hour worked commencing July 28, 1989 for added risk,and injury to my health and safety. The monetary claim was withdrawn on May 7, 1990. The grievance was signed by the grievor, Cindy Haynes. Officer Cooney did not file a grievance and did not join in this grievance. The grievor testified that the failure to have all inmates shower on admission resulted in some inmates being required to work in the kitchen, who had tremendous odors and who, by virtue of their occupations as labourers, would have dirty fingernails and greasy hands. She had complained to the staff about this situation, but she did not discuss this matter with her supervisor. The nature of the complaint, is one which would affect not only the grievor's health and safety, but would affect the health and safety of the inmates and other staff members who ate the food prepared by the inmates. However, the grievor did not bring this complaint to the Board by Page 5 means of a union or.policy grievance, and she also testified that she chose not to bring tkis mat%er before Occupational and Health & Safety Committee, but to proceed on the grievance on her own behalf. In Re Canadian BrQadcastlng Corp. and Nation~l Association of Broadcast Employees and Technicians (1973) 4 L.A.C. (2d) 263 (Shime), Mr. Shime speaks of four types of grievances: individual, group, policy and hybrid and states at p. 266: (a) individual employee grievances were the subject matter of the grievance in personal to the employee; (b) group grievances were a number of employees with individual grievances join together in filing grievances. This type of grievance'is really an accumulation of individual grievances; (c) union or policy grievances where .the subject- matter of the grievance is of general interest and where individual employees may or may not be affected at the time the grievance is filed; {d) there is a hybrid type of grievance which is a combination' of the policy grievance and the individual grievance. In this type of situation, although one individual may be affected, he may be affected in a way that is of concern to all members of the bargaining units. Thus, the individual may grieve on the basis of how he is particularly affected while the union may also grieve citing the individual case as an example of how certain conduct may affect the members of the bargaining unit. In reviewing the form of the grievance and after listening to the evidence, it is clear that the grievance before us is an individual grievance. The collective agreement does not define the four types of grievances, but it dbes set out separate procedures for individual grievances and for union grievances. Articles Page 6 27.2.1 to 27.6.4 of the collective agreemen% set ou~ the procedure for individual grievances and article 27.12.1 to 27.12.3 for union grievances. we find, as with other panels of ~he Grievance Settlement Board that individual and union grievances, as provided in the collective agreement are mutually exclusive. OPS~U(S. Anderson) and The Crown :in ~ght of Ont~riQ (I..T..R.O.) G.S.B. #1028/86 (M.V. Watters), QPSEU Fox and The Crow~ in Right of Ontario (L.C.B.O. G.S.B. 572/82(Draper), OPSEUCJ.R.T. Katchay) and The Crown in Right of Ontario (M.C.S.) G.S.B. #354/83 (J.W.Samuels). In Fox (supra), the Board recognized t'he limitations of an individual grievance. It recognized that a declaration may be given on an individual grievance, but tha~ the declaration would not be of general application but would be restricted to the particular grievor and the issues raised by the grievance. The Board did not allow the grievor in that case to achieve a result as if it were a policy or a group grievance, by means of an individual grievance. Similarly, Arbitrator Samuels recognized in the J.R.T. Katch~y (supra) decision, that there has been a tendency to broaden the union's right to file policy grievances such as in Re CorporatSon of BoroLLgh Qf ~Kobicoke and ~tob~coke Civic ~nlplQyees' Loc~] UniQD ~185 (1980) 28 L.A.C. (2d) 1 (Shime), but there has not been any similar tendency to enlarge individual grievances. Our jurisdiction is framed by the grievance. The benefit of the arbitration procedure is that boards usually will not take an overly technical approach to the construction of the grievance, as the purpose of the grievance is to set out the issue and to not subject it to a technical analysis. However, we cannot treat a grievance of Page 7 one person on the basis that there .are many others in suppor5 of that position when the grievance has not set out in that manner. Therefore, as this ·grievance is an individual grievance, it cannot be treated as a policy or union grievance. As an individual grievance, therefore, the onus is upon the Union to show that tke grievor's personal health and safety was affected by the Ministry's failure to follow procedures. Regulation 649 of the Ministry of Correctional Services Act states: 9.0 When a person is admitted into custody at an institution the person becomes an inmate of the institution and the Superintendent shall insure that each inmate is searched, bathed and clothed in the proper manner. Therefore the regulation requires every inmate to be showered whenever that inmate is admitted into custody. There are no exceptions made for the intermittent inmate nor for the in transit inmate. Although mention was made of in transit admissions not being showered on July 28, 1989, the evidence related more particularly to the admission procedures for intermittent admissions. On the evidence that was presented to this board, the in transit inmates leave and re-enter the institution and therefore are re-admitted into custody at the institution on their return. By virtue of leaving the institution and .returning to the inmate's workplace the intermittent inmate leaves the custody of the institution and is again admitted to the custody of ~the institution on his return. The Page 8 Ministry's standing orders to require these inmates to be searched upon entry is consistent with the concept that these inmates are admitted each time that they re-enter the institution. The standing orders to July 28, -1989 were in compliance with the regulation. The new standing order which was issued on July 28, 1989 requiring only new admissions to be showered was contrary to this regulation. Therefore, the Ministry breached regulation 649 section 9 when it failed to ensure that the in transits were showered upon re-entry to the institution. However, our jurisdiction is not to enforce the regulations, but to ensure that the terms of the collective agreement are not violated. Therefore the grievor has the onus to prove not only the breach of the regulation, but also that the breach also affected her health and safety. The grievor testified, and the Ministry acknowledged, that intermittents usually arrive Friday after dinner and some may arrive as late as 10:00 p.m. They are not showered in the admissions and discharge area, but are sent to their work units, where the showers are turned on from 6:00 p.m. to 9:00 p.m. The inmates have the opportunity to shower should they wish to, but they are not required to do so. The grievor was aware that that the practice of · intermittents not showering upon re-entry to the institution, had been carried on for three years, and there was no evidence that this breach of the regulation affected her health and safety at any time. The grievor testified that sometimes intermittents were called to do kitchen duty for the 5:30 a.m. shift. If Page 9 the inmates had arrived late, the inmate would not have had an opportunity to shower. Although they are given ~clean clothes, but they are not required to shower. The grievor claimed that as many of the inmates are labourers, they frequently return to the Centre with tremendous odours which she finds nauseating, but more importantly, they 'work with greasy hands and fingernails. She claimed tha~ these inmates who are hot required to shower, exposed her to a health and safety risk. Under the Ministry Standards and Procedures Section F-2, Page 21, the general health care policies do not allow persons with poor personal hygiene to work in the kitchen and it asserts that all food handlers must be clean. The correctional 'officers or the kitchen staff may select inmates required for kitchen duty and therefore the staff has the ability and obligation to choose clean inmates or to ensure that the inmates are clean before performing their work. Accordingly, it is upon those who are responsible for the kitchen being the Health Care staff to ensure that these standards and procedures are met. Although it is a matter of common sense that cleanliness in the. kitchen will minimize any health risks, there was no evidence that that any staff member failed to comply with this standing order and therefore breached these policies. The grievor, herself, testified that she did not know what the kitchen ~taff did when screening the inmates. We only had the suggestion that there was a likelihood Of inmates with greasy hands working in the kitchen, as many of the inmates were labourers and would not have sufficient time to clean up. before going on kitchen duty. Nor was there any evidence that the in transit inmates which the grievor met with Officer Cooney were Page 10 requir?~ to work in the kitchen nor did they work in the k it chen. A!Chough showers are available from 6:00 to 9:00 o'clock each night for the intermittent inmate, if the inmate were assigned to a work unit such as the kitchen, the work units have showers available for those inmates at all times. Any correctional officer can direct an inmate to take a shower and can give disciplinary action if the inmate fails to follow the order. Therefore, even if we had found that the grievor or Mr. Cooney had seen that an inmate was not showered it was within Mr. Cooney's and the grievor's authority to order that inmate to be showered. Therefore, we cannot find that the Ministry violated the collective agreement, when it was within the grievor's power to ensure that there was no health risk. There was a suggestion that the supervisor could undermine the correctional officer's decision by overturning the discipline; however there was no evidence to indicate that this had occurred. Our jurisdiction arises from article 18(1) and we find that the Union did not discharge the onus upon it %o show that the grievor was affected by any breach in procedure by the Ministry. Therefore, this grievance is dismissed. The Ministry acknowledged in its opening statement, that it was prepared to examine the practice and to ensure -that the inmates were showered in a more timely fashion, we encouraged the parties to resolve the matter between themselves 'in the intervening days between hearings. Unfortunately, they failed to do so. It was conceded by the Union's counsel that it is not within the Board's jurisdiction to enforce the Page 11 Regulations. We are powerless, .as there was insufficient evidence to show that there was a health and safety risk to the grievor. We hope that the parties will direct themselves to the the Occupa'tional Health and Safety Com~nittee where each side has the opportunity to .consider the problem and canvass alternative methods of resolution. Dated at Toronto, this 6th day of SeDtemb~r!990. 'B.A. Kirkwood, Vicechair~erson J. Carruthers, Member I. Cowan, Member