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HomeMy WebLinkAbout1991-1929.Union.94-08-24 "~ " "-. ' ".. ': O~TARIO EMPLO¥~$ DE LA COURONNE " '(:' ' '. ~ ' CROWN EMPLOYEES DEL'ONTAR)O BOARD DES GRIEFS ;$0 DUNOAS STREET WEST, SUITE E, IO0, TO~ONTO, ONTAFI,,~). M5G fZ8 TELEPHOhlE/T~_L~_PHONE: ,1'41,5J 326-7358 180. RUE DUNDAS OUEST, BUREAIJ 2100, TORONTO (ONTARIO). MSG 1Z8 FAC$1MI£EIT~'LL~COPIE ; (4~6) 326-f3~6 1929/91 IN THE NATTER OF AN~RBITR~TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV~%NCE SETTLEMENT BOARD BETWEEN . O?SEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE= A. Barrett Vice-Chairperson W. Rannachan Member D. Montrose Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of Correctional Services HEARING May 14, 1992 May 14, 1993 May 4, 1994 DECISION This grievance is worded in the following form: "STATEMENT OF GRIEVANCE The Union grieves that management at the Chatham Jail is in violation of Article 18 of the collective agreement, eliminating certain ~Post' position(s) at the jail. SETTLEMENT DESIRED That management cease and desist these procedures by re- establishing those post positions. DATE August 15, 1991" The Chatham Jail~ is a small maximum-security institution hou'sing about 50 inmates. Correctional Officers are assigned to "post" positions in various parts of the jail, which is a rambling five-level structure built in 1849. Just prior to.the grievance being filed, management reduced the number of post positions on the day shift from five to four, and the night shift from three to two. Shortly after the grievance was filed, the fifth post position on days was reinstated, and a third post position was added to the night shift. These numbers are all minimum numbers, and the complement would be increased from time to time to accommodate special situations, Such as a suicide watch, escort duty or a large number of fresh admissions. The union says that the minimum numbers are simply not adequate to properly guard the inmates and thus protect the health and safety of the correctional staff. The union identified three areas of concern where lack of staff meant security precautions were not being properly carried out and standing orders were violated. The first area of concern is perimeter patrols. The Ministry Policies and Procedures Manual requires that staff do "routine perimeter patrols". The practice at this institution .is to patrol once a day around 5~00 p.m., and it takes about five to ten minutes to. complete. Correctional Officers testified that the officer in charge of that duty might miss it four to Six times a month because he is too busy doing other things. The purpose of a perimeter, check is to ensure that nobody is passing contraband in or out of the jail or attempting to set up an escape. Dangerous contraband consists of weapons or drugs, both of which are security risks. The second area of concern is entering occupied areas. Whenever an officer enters an.area occupied by inmates, he is to be let in by another officer who holds the key and remains outside the grill door, keeping the inside officer under constant observation. Union witnesses say that occasionally the outside officer might be called away to assist elsewhere and leave the inside officer alone. This is contrary to standing orders, and in fact it is a disciplinable offence to leave another officer alone in those circumstances. Union witnesses say that this has occurred from time to time, but they have never reported it to management, and management claims to be unaware of it. With respect to searches, the standing orders require that two employees be present during a strip search: one to do the search and one to observe the officer performing the search. A two-fold problem is said to emerge here. Sometimes no one is available to be the observer and an officer will strip search alone. Conversely, if an officer is called away from another area to assist with the search then his post position is left unattended for up to five minutes. This gives the inmates an opportunity to start fights or pass or use any contraband they may have. Also, says the union, the lack of personnel means that searches of occupied areas are not carried out often enough, thus giving the inmates an opportunity to "stockpile" contraband. On the evidence, there were 114 searches carried out in 1991 and 159 in 1992. During that two-year period, contraband was found on five occasions. For some unknown reason only two searches were carried out in November, ~ 1991, and a significant amount of contraband was found in one area. That low search frequency has not been repeated before or since. Standing orders require that searches of living areas be frequent, thorough and done on an irregular basis. Union witnesses described incidents where, in their opinion, under-staffing led to security concerns. In November, 1991, a fight broke out amongst inmates in the exercise yard, and the main floo~ and upstairs officers came out to assist, thus leaving their post positions vacant, for five to ten minutes. In another incident, an inmate attempted to hang himself, and the upstairs post position was left unattended while that officer assisted in taking the inmate~downstairs to the ambulance. Mr. Kostis testified that on one occasion in December, 1991, he and another officer were searching an inmate living area when the third officer outside the grill was called away. The inside officers had.to radio him to get him tO return. This incident was not reported to management. A management Security Officer, Mr. John McLagan, raised security concerns with the Superintendent, Mr. Beaton, in November, 1991. Many of his concerns have now been dealt with and corrected. The jail is presently undergoing an extensive renovation, and most of Mr. McLagan's concerns dealt with the physical facilities. He also raised the concer~, however, that "the staff on duty are insufficient in complement to properly search inmates and living areas and the cleaning of them, as this is time consuming for several staff at any one time, then these duties will be done more infrequently, letting inmates develop more contraband". In June, 1992, a "post audit" was completed by a management Shift Supervisor and an experienced Correctional Officer. The auditors identified the concern that when one officer was backing up another officer outside his area, that left his area unattended. They recommended that both the day and night shift be increased by one officer each shift, to bring the total posts from eight'up to ten. When the Superintendent received this audit, he forwarded it along to Regional Office, which makes the staffing level decisions, along with a request for funds to hire additional staff. He was told in no uncertain terms that no funding ~was available for 5 additional staff. A second audit -has been carried out recently by a Superintendent from another institution ~ho is auditing all the jails in the Province, but his recommendations have yet to be released. Mr. Beaton testified that when this~ grievance was filed the jail capacity was 62. It is now 50, with ~ne extra bed to be added after renovations are finally complgte. He said that if Correctional Officers are searching inmates or cell areas alone he would exP~eCt to receive a full written report about it so he could assure it would not happen again. He is not unduly concerned that officers leave their posts to assist at;other.posts from-time to time. He said that the inmates are not supposed to be under constant visual surveillance: the Correctional Officers have other duties to perform that take them away from their posts for periods of time. The union argues that where both management and union representatives agree that current staff.ing levels lead to security concerns ipso facto it follows that the employer has not taken reasonable precautions for the health ~nd safety of correctional .staff. While acknowledging that it is an exclusive management right to set staffing levels pursuant to the Crown EmDloyees Collective Bargaininq Act, the union argues that management's prerogative is circumscribed by its requirement to make reasonable provisions for the. health and safety of staff. The post audit performed fin 1992 by a management-labour team of two recommended.the addition of one post position to each of the.day and night shifts. Counsel notes that. Mr. Beaton did not reject this ,suggestion, but implicitly approved it by forwarding it to Regional Office with a request for funds. The denial of increased funds by Regional Office based on financial constraints was not a negative response to the request on its merits but simply a financial decision made without regard to health and safety concerns. Furthermore, argues counsel, standing orders are designed to avoid risk. If they are breached, it proves that reasonable standards are not being maintained. Employer counsel responds that you cannot convert what is essentially a workload complaint into a health and safety grievance without specific objective'evidence that staffing levels directly impinge upon the health and safety of staff. Counsel argues that in all of the evidence we heard there was no nexus established between perceived risks and the actual health and safety of correctional staff. The union says there are insufficient searches of cell areas, but how many are sufficient? And if the frequency of searches is posing a risk, to whom~ is it a risk? There was no evidence that when an officer leaves his post to assist another officer at another post he is leaving behind hi~'a risk to the health and safety of officers. There is no requirement that inmates be under 24-hour constant surveillance, and there is no evidence that links leaving a post to increasing risk to health and safety of officers. Strip searches should not be done alone but if they 7 are and are not reported, manaqement can hardly be expected to remedy the problem. Furthermore, if officers have been doing the searches alone there is no evidence that the practice has affected their health and safety. The simple fact that certain procedures are not performed is not, without more, proof of a risk to health and safety. Counsel posits that while it might be nice for both management and bargaining unit members alike to have more staff at the jail, this Board has no jurisdiction to order it without clear evidence of an existing or clearly potential risk of harm. We were referred by both counsel to numerous Grievance Settlement Board decisions all arising out of this Ministry dealing with health and safety issues. In Haynes, GSB ~1246/89 (Kirkwood), the Board said, at page 8: "...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." Dowhey, GSB #982/88 (Barrett), was cited for the proposition that "reasonable provisions for 'health and safety" must be measured against some objective standard, and that a cause and effec~ relationship between the perceived harm and the risk to health.and safety must be established. In Union Grievance, GSB 9826/88 (Kates), the Board said, at page 12: "However, we require cogent, dispassionate and objective proof that an 'unnecessary' risk for extraneous and irrelevant considerations has indeed been assumed. For example, where is it .'carved in stone' that only ~he ratio of one . 8 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 to that standard? Why is any 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 mor% correctional officers than the desired ratio?" In Moulton, GSB #230/88 (Watters), at page 12, the Board observed: "...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." Stockwell, GSB #1764/87 (Wilson), was cited for the proposition that the union is not required to show actual harm has occurred from the impugned actions of management. A real and serious risk of harm is sufficient. Reference was made to W~atts/Kin~, GSB #1367/90 (Kaplan), where the Board held, at page 27: "In our view, it is not unreasonable in a case where the union has demonstrated some degree of risk to the Safety and health of employees to require the employer to explain, if not justify, the 'necessity and reasonableness of that employer-imposed risk .... in the absence of any explanation why the investigators recommended an increase in patrols to two per hour, or why this was later reduced to one per hour, we find'that the increase is unnecessary and constitutes a violation of Article 18.I." In the instant case, we note that this grievance arose in August, 1991, when the Ministry temporarily eliminated two post positions at the jail. The settlement desired was that management re-establish those post positions. On the evidence, we understand that these post positions were re-established shortly after the grievance was filed. The Ministry~ did not object to the grievance proceeding on the union allegation that staffing was still insufficient for health and safety reasons, and we had a full airing of union concerns over the two-year period of our hearings. ! We were unable to find any solid basis in fact for the'union proposition that under-staffing put the Correctional Officers at ~ real and serious risk. There was no concrete evidence that when an officer left his post to assist an officer at another post, a risk to the staff was actually created. Similarly the occasional missing of perimeter searches was not linked in any way o~ the evidence to increased risk to staff. We think there is an obvious potential risk to staff if a back-up officer leaves the grill area while another officer is inside a cell area, but it is the Correctional Officers' responsibility to ensure that this does not occur and to report any incident where it h~s occurred so it may be corrected. Management does not require Correctional Officers to leave a grill area in such circumstances and in fact forbids it. Similarly strip searches should not be conducted by one officer alone, but any employee of the jail can ac~ as back-up, and it is incumbent upon the officer 10 doing the search to insist on back-up or to report the situation if back-up is requested and denied. There is certainly no evidence that any officer was ever ordered to complete a strip search on his own. Mr. McLagan, who testified he had seen it happen was in fact, by observing it, acting as the back-up officer. Article 18.1 of the collective agreement requires the employer and the union to co- operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. Unreported violations of standing orders would appear to contravene the union's obligation in this regard. In saying this, we make the assumption that if these occasional violations of standing orders had been reported to management, management would have taken steps to ensure there would be no recurrence. In result, we cannot find that the staffing arrangements at the Chatham Jail pose a real or serious possibility of harm to the staff and this grievance must be dismissed. Dated at Toronto this 24~h day of Au§ust, 1996. ~ A. Barrett, Vice-Chairperson W. Rannachan, Member D. M6ntrose, Member