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HomeMy WebLinkAbout1982-0278.McIlveen.83-03-21IN THE XATTER 3F AN ARBITRATION Under THE CROWN EMPLPYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (James MFIlveen) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer E. B. Jolliffe, Q.C. Vice Chairman H. Simon Member E. R. O'Kelly Member L. Stevens Grievance Officer Ontario Public Service Employees Union J. F. Benedict Manager, Staff Relations Personnel Branch Ministry of Correctional Services September 16, 1982 October 1, 1982 November 8 & 9, 1982 -2 - DECISION On March 17, 1982, Mr. James McIlveen presented the following grievance: I hereby grieve that the two (2) day suqzension I received was unfair ard unjust. The "Settlement Required" was as follows: Full restitution for the two (2) days suspended, including all monies, benefits, and loss of credits due me. The griever is a Correctional Officer 2 employed at the Hamilton-Wentworth Detention Centre, which is maintained by the Ministry of Correctional Services. The offence charged against the griever was one of negligence in that the Employer found he had, on January 9, 1982, "failed to lock a security door thereby impairing institution security." The particulars of the charge were stated in the second paragraph of a letter from Superintendent R.D. Phillipson to the griever, Exhibit 2, dated March 23, 1982, six days after the grievance: - 3 - The circumstances leading to this allegation are as follows. On January 9th, 1982 between the hours of 09:28 and lo:02 you were responsible for issuing clean clothing to the 30 inmates accommodated in 3-A-L. You carried out this process using the connecting door between the 3-A-L dayrwm and common room, unlocking and relocktig the door as each group of three inmates entered and left with their clean issue. At 15:08 hours, some five hours after the process had been completed, a supervisor found the door you operated to allow inmates to enter and leave closed, ixt unlocked. You were the last known person to operate this security door. The evidence tendered by the parties was substantial in volume, if not in content. At hearings held by this Board on September 16, October 1: November 8 and November 9, testimony was given by 16 witnesses and 21 exhibits were filed. Most important would seem to be the evidence of the supervisor who found a door unlocked, and that of the griever, who denies responsibility, but the surrounding facts are of some complexity. Thus the Employer's representative found it necessary to call 11 witnesses: 1. Mr. Peter A. Pohlmann was the Correctional Officer 3 in charge of the third floor on the morning of Saturday, Jan- uary 9. From time to time he supervised the routine clothing change in the common room between 3-A-L and 3-A-R, but the griever and one or two other officers were responsible for conduct- ing the change. This witness went off duty (after making two - 4 - security "tours") and left the premises before an unlocked door was discovered at 3.09 p.m. On Monday, January 11, he reported what he had observed prior to 3 p.m., Exhibit 5. Through this witness also was introduced Exhibit 8, a photocopy of the 3-A log- book from 6.50 a.m. Saturday, January 9, to 7.00 a.m., Sunday, January 10, probably the most important of all the exhibits. Mr. Pohlmann conceded that when keys change hands (as they often do during a shift) the change is not always logged. The griever had been the officer in charge of the "A Pod" early in the shift but had been sent away on other duties for some time. 2. Mr. Erskine Smith, a C.0.2, assigned to work with the griever on the morning of January 9, had the keys used on 3-A until called upon to preside over inmates' exercise period, but did not open or close the door between 3-A-L and the Common Room. He conceded that he "might have had the keys" again during the lunch period. .3. Mr. Michael Orpen, another CO2 also said he might have had the 3-A keys at lunch-time, but was not involved with the Common room door. He logged inspection "tours" at 9.28 a.m. and 11 a.m. but could not recall exactly what duties he performed in that shift. It was possible he unlocked cells at 1.30 p.m. to let inmates out into their day-room. It may be commented here .- -. :, ; - 5 - that any of 28 inmates in 3-A-L could have strayed intothe common room between 1.30 p.m. and 3 p.m. on becoming aware that the connecting door was unlocked --- if indeed it was unlocked or malfunctioning during that period. 4. Mr. Lloyd Abbott, a C02, relieved the griever as "pod officer" at 3 p.m. and received 11 keys from him, as certified by both on Exhibit 6. He asserted that he made a security check immediately thereafter, testing all doors. However, he did not find unlocked the door between the common room and the 3-A-L day room --- for which he was subsequently disciplined. A few minutes later his supervisor, Mr. Wblak, discovered the unlocked door. Mr. Abbott testified there had been "trouble" with other doors. His report, Exhibit 11 made that night, said he tested the door about 10 o'clock that night with two other officers and found the lock mal- functioned in that it "released itself" four of six times. 5. Mr. John Wolak, a CO3 and a "team leader" on the third floor, succeeded Mr. Pohlmann on duty about 3 p.m. At 3.08 he started touring all living areas, testing doors and windows as he went. At 3.09 p.m. he found the 3-A-L common room door closed but unlocked. He had Mr. Gruba, a C02, confirm his finding and also questioned Nr. Abbott. Some time ., -. ; 1 - 6 - after 10 p.m. he made another check, testing the lock about 11 times, but it never malfunctioned. This he reported in an addendum to Mr. Abbott's report. He testified the breach of security would not be logged in Exhibit 8 by the pod officer; it belonged in the team leader's log. Mr. Wolak reported the incident to the Superintendent on January 9, Exhibit 13, and again in more~detail on January 13, Exhibit 14. He testified he knew nothing of previous trouble with door-locks. His practice was to do "tours" including security checks about twice in each shift. 6. Mr. L.J. Hardwick supervised the second shift on January 9 on all floors. When taking the second or third shifts he is the senior officer in the institution, the Superintendent and Assistant Superintendent being absent. About 3.30 p.m. on January 9 the unlocked door was reported to him by Mr. Wolak He made a check himself at 10.45 that night and was present when Messrs. Wolak, Gruba and Abbott were locking and unlocking the door. He tested it himself half a dozen times and "it seemed functional." He did not form a conclusion about the lock, but asked the maintenance staff "to tear it down." Early in the summer of 1982 all common room doors (leading to the day rooms) were permanently closed by order of the Superintendent. Questioned-further, Mr. Hardwick recalled there had been"trouble" -7- with some locks when the institution opened several years ago. Some required repair; others were replaced. Such problems were for the maintenance staff. 7. Mr. Nick Gruba, a C02, was Mr. Wolak's second in command on the 3 p.m. shift. He said that two or three years ago he had the same trouble with the same door. By request, he wrote a report to the Superintendent, dated January 28, Exhibit 16. Consistent with his testimony some months later, it was as follows: In reference to the incident on 3-A with Mr. Abbott I was assigned to the third floor as 2 l/c. After Mr. Wolak had done his tour of 3-A-L he informed me that the common room door was still open which surprised me as I saw Mr. Abbott try the door during changeover. I locked the door. Later in the day I went into the common room & unlocked the door to try it because I had had the same incident happen to ma about two years ago. When I turned the handle to the right it moved very little. When I turned the handle to the left it stuck a little & I had to give it a harder twist. When I tried it two or three more times it did not happen again. 8. Mr. P.J. Faulhaber, now an R.C.M.P. officer, was on January 9 a CO2 assigned to the first shift on the third floor, assisting Mr. Pohlmann. His report, Exhibit 17, dated January 13, explained what was being done that morning. It is not complete,ly accurate in that there were 56 inmates in 3-A --- not 60. The report was as follows: - a - ckl Jan.9, '82, I was assigned a,~ second in charge of the third level for the morning shift. Mr. Pohlman was the level I.C., Mr. McIlveen was the "A' pod officer, and Mr. CQen was 'A' pd support. Between breakfast and lunch on the 9th clothes change was started ard completed. There were 60 inmates in 'A'. At a given tirre duriq that morning any number and combinations of the above mentioned officers plus myself were to ix found in 3A's common room assisting with the clothes change. Mr. McIlveen had the inmates come through the doors between the cummcn room and dayrooms, no more than 3 at a time. Mr. McIlveen brought them in, seared the door, super- vised the clothes change and returned them to the dayroom. A new group brought in the same way, the door re-secured and this continued until the entire pzd was changed. Mr. Faulhaber testified that the clothing change was completed about 10 a.m. He recalled receiving keys from the griever when the latter was sent away "to the hospital or some- thing." He made a complete security check at 1.50 p.m., testing all doors, as he always did. He himself had never experienced problems with doors but "I had heard something about it." 9. Mr. Gerbert Jongerden, Maintenance Supervisor with a staff of six, has been at the institution since before it opened. Locks were supplied by the Folger-Adams firm of Joliet, Illinois. He had found that cell locks (Series 110) could be made to malfunction, and proved his point with a demon- stration at Joliet. However, the common room door lock is a - 9 - different model, Series 125. On testing it himself in January "I couldn't make it malfunciton." He then removed the lock, dismantled it and found no defect. He later found a "burr" on the edge of the bolt but did not think it had any effect on the operation of the lock. He had checked all doors of the type in 3-A and in three found signs of "settling" which could cause misalignment between the bolt action and the keeper plate. He thought the staff had been testing doors in an effort to show that the locks could malfunction. Trouble with defective keys was more likely. He acknowledged having had problems with certain locks which are electrically controlled. Other locks had been affected when inmates inserted paper clips or other foreign material. 10. Mr. James Ransom, classified OM15, was the shift supervisor during the first shift on January 9, being on duty from a a.m. to 4 p.m. This being Saturday, he was also "acting" Superintendent. He did not handle keys at anytime. He made inspection tours (as shown by the log) at 8.15 a.m. and 12.05 p.m. but did no security checks. When he left about 4 p.m. he had not heard of any problem on 3-A. 11. Mr. Robert D. Phillipson has been Superintendent of the Hamilton-Wentworth Detention Centre since April, 1974. i i - 10 - In his testimony he described the work of the Centre. Although designed to accomodate a total of 300 men and 40 women on seven floors,, it had 350 male inmates in November and 30 or more females Mr. Phillipson, on receiving reports on January 11, ordered that the 3-A-L Lock be thoroughly tested. There was much talk among the staff about malfunctioning locks, but he thought tests made by the staff were "inappropriate." Rough testing could make a lock fail. He had the common room doors permanently closed, so that now if inmates are to be taken to the common room it must be out the day room door into the lobby and then through another door from the lobby to the common room. After January 9 --- but not before --- he had received reports of malfunct- ioning locks. He thought some of the complaints might be legitimate. Previously, he had found the griever to be a candid and truthful person. He had decided to discipline Messrs. Abbott and McIlveen on the basis of various statements made during his investigation. His finding in respect of the griever were in his letter of March 23, Exhibi .t 2, page 2, as summarized follows: Through witnesses' corroborative statements and documented evidence it was clarly established that you were the last person to operate the door prior to a supervisor discovering it unlocked. Other evidence introduced at the Meeting indicated that the only possible way the lock could malfunction, if indeed it did, would be for it to stay in the open position &en locked. If this occurred - 11 - then you failed to detect it by properly testing the door. Conversely, it is not possible for the lock to malfunction the opposite way ie. from the locked to the unlocked position. consequently, I must conclude that either you did not lock the door and test it, or, the lock mechanism malfunctioned and you did not test it. In either case your failure to complete the locking process by 'proving' the door was locked and secured was not carried out. In his testimony, Mr. Phillipson explained that there are three different steps in the correct procedure for locking a door, these being: (1) to put the door in a position to be locked, i.e. firmly closed: (2) to turn the key; (3) to test the door by turning the handle and pulling or pushing. The griever's representative called five witnesses. Their testimony may be summarized as follows: (1) Mr. J.ames McIlveen, the griever, was a CO2 assigned to the 3-A pod on the morning of January 9. On January 11, he made the following report, Exhibit 18, addressed to Mr. Phillipson, regarding "door found unlocked in 3-A on 09/01/82": - 12 - On Jan. 09. 1982 I was assigned to 3A as the pod officer on the 0700-1500 hr shift. At approx 09:30 hrs I did proceed with the clothes change in this area with the assistance of Mr. Faulhaber and Mr. Pohlmann , C03. "ihe inmates were brought out of the pod 3 at a time via the door leading to the common room from the dayroom and on each occasion the door was relccked (left side first). At approx lo;40 hrs I did complete the clothes change and at this time I did check both door's leading to the dayroom's (both were locked and secure. At approx lo:50 hrs I was assigned towash the institution cars at the car wash which I did complete at 12:ZO hrs. Men I returned to the level I did take the lunch spoons, dishes out of 3 AL, R, then I proceed to lock-up the inmates in their cells at ivhich time I again check the &ve mentioned to find it locked & secure. After I had locked up the inmates I received a phone call from Mr. Ransom shift I/C, that I had a hospital escort to take out of the institution. When I returned from the escort at 14:40 hrs I did relieve m. Faulhaber of the keys of 3A. At 14:50 I was rel'd by Mr. Aizbott of duty & keys of the area after Mr. Atbott had completed a security check of the area. (sic) In general, the griever's testimony was consistent with his report of January 11, except that he thought he had checked the door himself about 12.45 p.m. as well as at 10.40 a.m. He went into greater detail, explaining that there is always an officer at the grill watching the officer inside who must always check doors and windows for security. He said he was at the grill during the changeover about 3 p.m. and watched Nr. Abbott makirg all the necessary tests. He said the door - 13 - into the common room is not entirely visible from the grill, but the handle is. He believed the door might have been opened after he departed about 11 a.m. so that a Trusty could remove soiled clothing from the common room. He had opened and closed the door many times during th$ clothes-change and "when I was there the door was normal." He said that when the word "tour" appears in the log it a.lways means there has been a security check of doors and windows. As for Mr. Wolak's discovery at 3.09 p.m. he could only say "I can't explain what happened." 2. Mr. Stephen W. Wilkinson is a CO3 team leader. In April, a common room door in 3C was found open during a changeover (from one shift to the next) and the next day a CO3 named Halt was able to force it open in the presence of a maintenance man. It was of cdurse reported. About the same time common room doors were locked permanently, although one was oped in November to facilitate a search for drugs. Mr. Wilkinson said his practice was to do at least one tour in each shift, usually just after taking over from his predecessor. He relies on his CO2,'s to do other checks. On his floor he has about 145 inmates and a staff of seven. - 14 - There are three pods on each floor. As shown by Exhibit 15, each pod includes a staff station (where officers are based) which is separated by a corridor from two "day-rooms" and the so-called "common room" between the two day-rooms. Each day-room is a living facility equipped with toilet, showers and a television receiver. A "day-room" is triangular in shape, with 10 cells along two sides. The door into the common room is on the third side. A similar door on the other side of the common room gives access (if not locked) to another day-room, also with 10 cells. At a third side the common room'has a fire door leading to stairs. Its lock is controlled electrrcally. On the fourth side is a door opening on the corridor, directly opposite the staff station. Thus the officers in charge of the 3-A pod must at appropriate times check the doors of 20 cells, one fire door, two doors between the common room and 3-A-L and 3-A-R, one door (with a grill) between the common room and the corridor as well as the doors (also with grills) between the corridor and the two day-rooms. Officers must also check windows. 3. Ms. Kathryn Nagy, a CO2, was on the second shift - 15 - January 9. She was not aware a door had been found open but was asked to try the 3-A-L door in the presence of Mr. Abbott. When she turned the key, "it worked the first time but not the second. The key went around but nothing happened." By request of the Assistant Superintendent she made a written report, Exhibit 19. In her testimony Ms. Nagy also described the incident referred to by Mr. Wilkinson. On April 5 she was doing a change-over tour with her predecessor, an officer named Keenan. When testing the doors she threw her hip against the 3CL door, which came open and she fell through. 4. Mr. George Allen, a COZ, testified that in April he had encountered two malfunctioning doors in 4CL and 4CR. He could open them but neither could be locked. He called another officer, Mr. Adams, who was also unable to lock the doors. The keys were taken away by the shift supervisor. They are no longer in use. Mr. Allen also said that in April or May another officer had found a malfunctioning ramp door on the first floor. He was asked to guard the door while awaiting repair. Mr. Jongerden had come to see it. - 16 - As recently as October, Mr. Allen said, he sawa ramp door on the fifth floor giving trouble. The ramp doors, he explained, can be opened and closed electrically, but this is usually done by hand. 5. Mr. Harry B. Adams, a C02, said that on or about April 5 he was called by Mr. Allen to the 4C common room doors, which could not be locked. "It clicked, but when I turned the handle, it turned." He called the shift supervisor, who said he would report the problem. It was duly logged, Exhibit 20, at 9 a.m. that maintenance was "on level to correct malfunction in' locking mechanism (doors 4C)." At 3.50 p.m. on April 7 the log records removal of "all common room keys;" It was also noted at 8.20 a.m. on April 8 that maintenance was "on level to carry out necessary repairs to common room doors." The keys were returned to pod officers later that day. Mr. Adams referred to other problems with keys, such as at the "Lobby .Door" on the third floor. Keys often had to be replaced. He mentioned an incident at cell 13 in 4C two years ago. The cell door had been locked and checked three times but two inmates managed to get out of the cell and into the day-room. No one, he said, was disciplined as a result. - 17 - There is no reason to doubt the veracity of any witness. Nevertheless, after the passage of many months, there were examples of confusion about details; for example, Mr. Pohlmann began by referring to January 9 as a Sunday (when some inmates attend religious services) but eventually realized that January 9 was a Saturday. There was-also a certain tendency on the part of management witnesses to minimize the trouble there had been with door locks, while other witnesses sought to emphasize their experiences with malfunctioning locks or keys. The issue in this case is whether it has been proved on the balance of probabilities that the griever at sometime on January 11 was negligent in his duty to make certain that the 3-A-L door was locked and remained locked. In assessing the probabilities we think it important to follow the movements of the griever throughout the period from about 10.02 a.m., when he completed the clothes-change, and 3 p.m., when he surrendered the keys to his successor, Mr. Abbott. Exhibit 8 is a photocopy of the pod officers' log for the period from 6.50 a.m. on January 9 to 7 a.m. on January 10. There are many entries by a number of officers. Not all are compietely legible. Some are signed or initialled: others are - 18 - not. The following appear to be significant entries during the material period. At 9.28 a.m. "Clothes change in progress" --- unsigned. At 10.02 a.m. "I/M's clothes change complete" --- apparently initialled by the griever. At this point it was his duty to lock securely the 3-A-L door. At 11.00 a.". "tour and count" --- but it is not signed or initialled. The writing may or may not be that of the griever. Whoever made the tour and count would be respon- sible for checking all doors. At 11.50 a.m.: “meal tour --- lunch issued." Signed by Mr. Pbhlmann, this entry refers to the lunch given 57 inmates in 3-A-L and 3-A-R. At 12.05 p.m. Mr. Ransom also recorded and signed a "lunch tour." At 13.30 there was a "tour of day-rooms" --- signed by t+lr. Pohlmann. - 19 - At 13.50 a "tour" was recorded, but the signature is illegible. Mr. Faulhaber has testified he did it. At 14.50 there is an entry "Acc'd Hr. Abbott on tour & count" and at 15.00 "rel'd by same of duty & Keys" under which appears the signature of t,he griever. At 15.08 Mr. Wolak, who had just taken over as team leader, recorded and signed "Tour of living areas." There is no entry, however, for the discovery of an unlocked door at 15.09. It is clear from the entries cited above that between 11.00 a.m. and13.50 there were no less than four "tours." The first could have been made by the griever, but not the second, third or fourth. made in his absence while performing other duties. There was a fifth "tour" by Mr. Abbott at 14.50. The griever ought to have accompanied him, this being a changeover procedure; instead, he kept watch outside the grills. The conclusion to be drawn from the log is that if in fact the 3-A-L door was left unlocked by the griever when he completed the clothes change shortly after 10.00 a.m. the omission ought to have been detected in the "tour" at 11.00 a.m. or the "tour" at 11.50 a.m., or Mr. Pohlmahn's "toLir" at 13.30 or the "tour" I - 20 - at 13.50 (which Mr. Faulhaber has testified was his) or Mr. Abbott's "tour" at 14.50. Witnesses agree that all officers share responsibility for security and that tours mcst include security checks. The uncontradicted testimony of the griever is that he was sent away to wash vans at some time between 10.15 a.m. and 11.15 a.m. and then required to escort an inmate to the hospital. During that period --- and while he was at lunch --- other officers had the keys and made the usual "tours." Unless all were negligent --- which is unlikely --- an unlocked door would be discovered hours before 15.09 --- if it was not securely locked. It was suggested or implied in the testimony of Mr. Jongerden and Mr. Phillipson that after January 9 members of the staff tried to make door-locks malfunction by rough or im- proper treatment. The difficulty about that theory is obvious: if an officer could cause a malfunction in that way, so could any inmate. Presumably lucks designed and manufactured for use in penal institutions are supposed to withstand ill-treatment. If they fail to do so, it merely illustrates once again the limitations of modern technology. - 21 - Whether or not any one set out to make locks mal- function, the evidence is clear that in 4C at least a lock of the Series 125 type (the same as in 3-A) did in fact fail when the door was pushed by Ns. Nagy, and required repair by the maintenance staff. There is also the evidence of Mr. Abbott, Mr. Gruba and Ms. Nagy that when they tested the 3-A-L door- lock in the evening of January 9, it sometimes worked and some- times could not be locked properly. It is possible of course that when the griever closed the door of 3-A-L after the clot'nes change, he failed to lock it correctly, and that several subsequent checks by several different officers were not sufficiently tho:ough to reveal th.e problem. These,however, are merely possibilities and would signify that other officers as well as the griever must have done their duty in a negligent manner. Another possibility is that.there was no negligence whatever and that the lock simply malfunctioned when +lr. Wolak tested it, not before. Since the lock in 4C unexpectedly faiied --- and re- quired repzir after Ms. tiagy tested it, then it is equally possible that the 3-A-L lock also faiied unexpectedly. If the testimony of Xs. Nagy and Messrs. Abbott and Gruba is to be believed --- and there is no reason to reject it --- the - 22 - behaviour of the 3-A-L lock was erratic and inexplicable: some- times it worked and sometimes it did not. It is not without significance, in our opinion, that in April the doors between day-rooms and common rooms were permanently closed, by order of the Superintendent, and the keys withdrawn. Confidence in their invulnerability seems to have dwindled. tir. Jongerden had found at least three where "settling" of the frame could impair the alignment be- tween the bolt action and the keeper plate. We are obliged to conclu~de that the evidence --- on the balance of probabilities --- fails to prove negligence on the part of Mr. McIlveen. His grievance must be upheld. The suspension is set aside, he is entitled to restitution as re- quested and the disciplinary action taken should be removed from his record. 21 Dated at Toron~to, Ontario this 21s': day of rLiarch, 1953 2: 1421 Z:BJ : sol