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HomeMy WebLinkAbout1995-1552.HOWARD.96_09_26 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO ,...- GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ONTARIO. MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE TELI:COPIE (416) 326-1396 GSB # 1552/95 OPSEU # 95F309 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Howard) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE F Briggs Vice-Chairperson FOR THE A Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE M Mously EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services HEARING May 23, 1996 - Bnan Howard IS a CorrectIOns Officer 2 (hereInafter referred to as "C02") and has been workIng at the Niagara DetentIOn Centre SInce 1978 In Apnl of 1995, he filed a gnevance whIch stated. That a precedent has been established m the medIUm area at the Niagara DetentIOn Centre bv management placmg three (3) officers m medIUm area after 2300 hours. Health and Safety are now JeapordIsed (SIC) by reducmg coverage m the aforesaId area to two (2) officers m VIew of an mmate count that IS well over (100) one hundred. Contrary to SectIOn 18 1 of the collectIve Agreement. The requested remedy was ImmedIate resumptlon of a tlurd officer m medium area. Establish a mandatory baselme cntena for an mmate count. $100,000 monetary compensatIOn for any officer mJured while entenng or clockIng m any dormitory Without suffiCient back up Ie (3) officers. The partIes proVided the follOWIng agreed upon facts 1 The gnevor IS employed as a CorrectIonal Officer at the Niagara DetentIon Centre and has been so employed SInce October 1980 2 The NIagara DetentIon Centre IS a correctIOnal faclhty located In Thorold, Ontano The facility has the follOWIng bed capacIty" 156 medIUm secunty beds (male adult), 84 maXlffiWll secunty beds (male adult), 20 young offender beds (male), and 10 segregatIon beds The faclhty houses Inmates who are awaItIng completIon of a cnmmal tnal, aWaItIng transfer to another correctIonal faclhty; servmg a sentence of 90 days or less, servmg an Intenmttent (ie weekend) sentence, beIng held pursuant to an nnnugratIon matter; or any combInatIon of the foregOIng. 3 The medlWll secunty urnt at the Niagara DetentIon Centre consIsts of 6 donmtOIY areas wInch are phYSIcally separated from each other Each donmtOlY area has 13 bunk beds With a capacIty for 26 mmates. Each donmtOIY area IS separated from the comdor by a sally-port door (Two doors of wInch only one can be open at one tune) The wall separatIng the donmtones and the comdor IS made of steel bars and pleXlglass and allows for observatIon of the area from the comdor 4 To be housed In the medlWll secunty area, an Inmate usually undergoes a classIficatIon reView to estabhsh that the Inmate IS sUItable for a donmtory settIng. A classIficatIon reVIew conducted on an Inmate may Include consIderatIon of current cnmmal charges, cnmmalInstory; status before the courts (l.e remanded, sentenced), behaViOur whIle In custody; medIcal consIderatIons 1 --- 2 5 Smce the fall of 1992, the medIUm secunty umt has been staffed In the followmg way. between 0700 and 2300 hrs , two (2) CorrectIOnal Officers are assIgned to the area when the mmate count IS 85 or less, between 0700 and 2300 hrs., three (3) Correcnonal Officers are assIgned to the area when the In mate count IS more than 85, between 2300 and 0700 hrs , two (2) CorrectIOnal Officers are assIgned to the area. 6 On Februmy 17, 1995, the Employer began assIgnmg a thIrd Correcnonal Officer to the medIUm secunty area between 2300 and 0700 hours Tlus practIce contInued until March 29, 1995 After March 29, 1995, the Employer returned to Its preVIOUS pracnce 7 At the present tnne, the medIUm secWlty UnIt IS staffed In the follOWIng way. two (2) CorrectIOnal Officers are assIgned to the area at all t1llles 8 The dunes of the Correcnonal Officers assIgned to the medIUm secunty UnIt between 2300 and 0700 hrs. Include up to three (3) donrutory patrols In the UnIt; and area checks to be done a mmrmwn of twIce an hour 9 In a dormItory patrol, one CorrectIOnal Officer walks to the end of each donrutory wlule the second CorrectIOnal Officers observes the patrol from the comdor A donrutory patrol of all SIX dorms WIll take up to twenty mInutes 10 In an area check, eIther of the CorrectIOnal Officers wIll walk the length of the comdor (approxunately 20 metres) and observe each donmtory through the bars An area check wIll usually take less than one mInute 11 Between 2300 and 0700 hrs., all mmates In the medIwn secunty UnIt are kept locked m theIr respecnve donmtones. The Correcnonal Officers wIll normally be accessible to the Inmates only wlule carrymg out dormItory patrols or respondmg to emergencIes 12 The partIes agree that the above facts are not exhausnve and reserve the nght to proVide further eVidence and make subIDlssIOns on the day of the heanng. Mr Howard gave eVIdence about the pracnce and events m the Centre before, durmg and subsequent to the mcrease of staff. When there are two officers aSSIgned to the umt and the officers are conducnng theIr secunty checks In the donmtones, one officer walts outsIde whIle the other goes through the sally port and mto the dormItory to check the wmdows, Inmates and perform a clock punch. When there were three officers, one enters as above ..-- 3 whIle the other two walt out m the hall and observe The gnevor was of the VIew that the unpact of the reductIOn m staff on the mght sluft was that there was a much greater nsk for the officers. In cross exammatlon he conceded that he was unsure If he actually worked any mght slufts dunng the penod of time when there was three officers assIgned. He was neIther mformed of the reason for the mcrease m correctIOnal officers on the mght shIft nor of the reason for the subsequent return to two officers Mr Howard agreed that correctlonal officers are only at nsk for the penod of tune when they are actually m the donmtones, that IS, three tunes mghtly dunng the donmtory checks There are twenty-sIx mmates per donmtory If there are only seventy five mmates m total, all mmates would be put mto three donmtones and not dIspersed throughout the SIX donmtones. Robert Thomas, Deputy Supenntendent, testified that the staff mcreased on the mght sluft for the approxnnately five and a half week penod because of an mstItutlonal concern regardmg the receIpt of new mmates On Monday February 13, 1995, the Centre was notIfied that It would be receIVIng between twenty and tlurty Inmates from a Jail m Toronto In fact, on the Wednesday of that week, the Centre receIved twenty three mmates The management of the Centre was concerned about the weekend coverage because the mmate census would nse by a further eIghteen mtenmttent mmates Intenmttent Inmates are those who are mcarcerated on weekends only Mr Thomas testIfied that the Centre was unsure of the type of mmate that would be transferred from Toronto They knew that the mmates would all be appropnate for medIUm secunty but there was concern that there ffilght be a need for more staff It was for these reasons the Centre deCIded to aSSIgn a tlurd officer on the mght sluft and momtor the SItuation to determme the ongomg neceSSIty I twas Mr Thomas' eVidence that the SItuatIOn was reViewed dally The reView process --- 4 mcluded studymg the log books and occurrence reports, If any, as well as dlscussmg the matter WIth supervIsory staff. After the ongomg reVIew, management of the Centre was satIsfied that the new mmates from Toronto had lIttle or no effect on the ongomg operatIOns of the facIlIty and accordmgly, the thrrd correctIOnal officer was wIthdrawn. Mr Thomas stressed that there was never a reductIon m the normal staff complement at the Centre There was a short penod where It was decIded, for operatIOnal reasons, to mcrease staff and once those operatIOnal concerns were no longecpresent, the staffmg returned to normal Both Mr Thomas and Mr Howard testIfied regardmg the response of officers on the mght shtft to an alarm m the one of the umts Suffice It to say that I am satIsfied that the Centre does not expect any officer to enter mto a sItuatIon wIthout the appropnate staff back up The normal practIce IS that all available staff are expected to respond to alarms Mr Howard testIfied about a sItuatIon where, m lus VIew, msufficIent back up amved at the scene of an mCldent. Mr Thomas was unaware of the mCldent and could not speak to It. Accordmg to the gnevor, he dId not enter the donmtory untIl another officer amved and the matter was resolved wIthout further mCldent. Further, there was dISCUSSIon by both WItnesses about appropnate staff conduct m the event of some untoward actIVIty amongst the mmates There was no dIspute that IS can be unsafe for a correctIOnal officer to go mto an mmate dormItory alone to deal wIth an mCldent. If an officer IS m a dormItory and an mCldent begms, It could put the officer m an unsafe pOSItIOn. UNION SUBMISSIONS Mr Ryder, for the Uruon, suggested that once the Uruon demonstrates nsk m the workplace the onus slufts to the employer to explam the nsk. In Re The Crown in Right of Ontario --- 5 (Ministry of Correctional Services) and OPSEU (WattslKing) (April 12, 1991) unreported (Kaplan), the same partIes asked the Board to detennme whether there was a VIOlatIOn of the collectIVe agreement when the Employer mcreased the frequency of the mghtly dormItory checks. After takmg a VIew and heanng substantIal eVIdence about the workplace, the nsk and the need for the mcrease, the Board stated at page 27 In our VIew, It IS not unreasonable m a case where the umon has demonstrated some degree of nsk to the safety and heal of employees to requrre the employer to explam, If no Justify, the necessity and reasonableness of that emplover-1ll1posed nsk. In a safety and health matter It IS s1ll1ply not suffiCient for the employer to state that It beheves that a certam amount of mcreased nsk IS necessary WIthOut taking the next step and convmcmgly explammg why A failure to take thiS next step leads to the conclUSIOn m the mstant case that while the employer considers mcreased patrols desrrable (and some reasons were gtven m support of tlus pOSitIOn), It has not fully turned ItS attentIOn to the potential safety and health consequences of the mcrease m patrols for Its employees, nor has It carefully assessed whether such an mcrease conforms to the reqwrements of Artlcle 18 1 In hght of the eVidence and arguments we have heard, and m the absence of any explanatlon why the mvestlgators recommended an mcrease m patrols to two per hour or why tins was later reduced to one per hour, we find that the mcrease IS unnecessary and constitutes a VIOlation of Article 18 1 Sunply put, we are of the View, based on the eVidence we heard, that the reqwrement for hourly patrols IS unnecessaI) to mamtam the secunty of thiS part of the mstltutlon. The reqwrement unnecessarily mcreases the nsk to Correctional Officers. The Dmon submItted that the above deCISIon stands for the propOSItion that the Dmon does not have to demonstrate actual hann only the possiblhty of nsk. The eVIdence substantIated that there IS nsk m the patrols. The presence of a thrrd officer reduces that nsk. The thrrd officer would be unmedtately available to aSSIst m the event of an mCldent mSlde the dormItory Mr Ryder urged that ArtIcle 18 Imposes a pOSItIve obhgatIon upon the Employer to take every reasonable step to ensure the health and safety of employees It was conceded that what IS reasonable WIll vary WIth crrcumstances and WIll mvolve a balancmg of mterests The eVIdence of Mr Thomas clearly mmcated that the management reVIewed the number of Inmates and the workload but not the health and safety of the COs There was no balancmg of mterests .-- 6 Mr Ryder asserted that the Umon demonstrated a prima facie case that the nsk to COs mcreased when the tlurd officer was taken off the mght sluft at the NIagara DetentIon Centre It onus now ShIftS to the Employer The gnevor asks that the Board order the Employer to perform a nsk assessment to determme whether an addItIonal CO IS necessary for staff safety EMPLOYER SUBMISSION Mr Mously, for the Employer, began by revlewmg the gnevor's eVIdence wherem he saId that he could not agree that two officers were suffiCIent for the health and safety of correcnonal officers, llTespecnve of the number of mmates m the facIhty ThIS mdlcates that the matter at hand IS one or workload, not health and safety It was suggested that the officers liked the staff mcrease and dIsliked the subsequent return to normal. The eVIdence was clear that there was a long penod where there were two COs on the mght shtft and there were no gnevances or any suggestIOn that the SItuatIOn was not satIsfactory The Board should be persuaded by the fact that pnor to the Employer voluntanly mcreasmg Its staff on February 17, 1995, there were no allegattons of health and safety problems The Employer asserted that the eVIdence was clear that the officer performmg the patrol check was alone m the domutory when two officers are on duty and the same was true when the complement mcreased to three The degree of nsk IS hnnted to the penod of the patrol, that IS, three occaSIOns each mght. The mCldent that the gnevor testIfied about whtch occurred subsequent to the return of normal staffmg was typICal. When back up amved, two people went mto the donmtory and the Inmates were told to break up and they dId WIthout further mCldent. -- 7 The number of Inmates IS not an Issue, Mr Mously contended, because an officer IS only exposed to one dOntlltOry at a time and that number IS twenty SIX, at most. The allegations m the mstant matter are speculanve nsks. The Employer was concerned about the mcreased number of Inmates bemg transferred from Toronto It exercised prudence by decldmg to schedule an addtnonal CO on the mght sluft. After a penod of assessment, It determmed that there was no mcreased nsk or workload and therefore returned the schedule to normal. The Umon cannot be allowed to rely on an mtenm precaunonary measure to later make a claun that It IS entitled to that measure The Employer conceded that Article 18 restncts the Employer's ablhty to assign work and staffing levels. However, m the mstant matter the employer has met Its obhganons and the Umon cannot merely assert that Its members would be safer With three cas. The Board should have cogent dtspasstOnate proof that a nsk IS assumed. The Employer IS not obhged to take reasonable precautIOns, not every precautIOn. DECISION After conslderanon of the eVIdence and the submiSSIOns of the partles, I am of the view that the gnevance must fall. In Re The Crown in Right of Ontario (Correctional Services) and OPSEU (Union Grievance) (August 24, 1990), unreported (D Kates), the Board was asked to conSider whether two cas were necessary when one mmate was bemg transported. The gnevance arose at the Millbrook Correctional Facility and, m determmmg whether there was a VIOlatIOn of Arttcle 18 1, the Board stated, at page 10 There IS no doubt m our mmds that the employer can always resort to means and techruques for a safer and more secure environment 10 Its dtscharg10g the responsibilitIes of operat1Og and managmg Its correctIOnal faclhtIes. And, 10 many of the questions put by counsel for the trade uruon to the emplover s WItnesses, Mr Cooney m particular those questIOns were premised on what mtght have been a safer and more secure arrangement for the transport of mmates to and from the MIllbrooh. faclhtv And, mdeed, we are prepared to accept, for argument's sake, that addttlOnal correctIonal officers asSigned to a particular escort mtght constItute a safer and more -- 8 secure tnp We would hasten to add, however that the employer mIght very well suggest, as It dId m thIS case, that asslgmng professional staff, particularly those responsible for the treatment and care of the mmate, mIght also contribute to a safer and more secure way of accomphshmg a trIp wIthout mCldent. And to tlus end, the trade umon adduced no persuasIve eVidence to demonstrate that an mappropnate nsk to the safety of the employees was asswned m eIther of the sItuatIons that were described m eVidence. As hItherto mdlcated we as lay persons on a tribunal may readlh be swayed as to what mIght constItute safer procedures. However we reqUire cogent, dispasSIOnate and objectIve proof that an "unnecessary" nsk for extraneous and rrrelevant consideratIOns has mdeed been asswned. I agree WIth the comments of V Ice ChaIT Kates It IS not sufficIent for the Umon to merely assert that addlnonal staff would make the workplace safer In the mstant matter, as was the case before Mr Kates, the Umon adduced "no persuaSIve eVIdence to demonstrate that an mappropnate nsk to the safety of employees was assumed" ThIS Board Illight have amved at a dIfferent result If the Employer, after many years of havmg three cas workIng the mght sluft m the medIum secunty urnt, reduced the level of staffing. However, the medIWTI secnnty urnt has been workmg With two officers on the mght slufts for years There was no prevIOUS health and safety concern brought forward by the Umon other than the fact sItuanon contemplated m the decIsIOn of VIce ChaIT Kaplan. In that decIsIOn, Mr Kaplan stated that It was not sufficIent for the Employer to assert that a certam amount of mcreased nsk IS necessary and not "take the next step" of explammg Itself It IS my VIew that the Employer has taken "the next step" m tlus mstance After the Centre was mformed of an upcommg mcrease m the number of mmates, It assessed a potentIal mcreased nsk and then took adequate and appropnate steps to address the SItuatIOn. The Umon asked that the Centre be dIrected to perform a nsk assessment to ascertam whether an addIuonal CO IS reqmred on the mght shIft m the medmm secunty area. In my VIew, the eVIdence estabhshed that such a reVIew was taken and done m an appropnate manner by the Centre poor to the return to normal staffing. I can fmd no fault WIth the --- 9 Employer's actIOns III thIS case and I find no vIOlatIon of ArtIcle 18 1 The eVIdence was clear that Employer took reasonable steps to ensure the health and safety of the workers F or those reasons, the gnevance IS dIsIlllssed. Dated III Toronto, tlus 26th day of September, 1996 ~ VIce ChaIT