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HomeMy WebLinkAbout1984-0069.Union.84-08-24IN THE MATTER OF AN ARBITRATION Under THE CROWN EKPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J. W. Samuels Vice Chairman I. Thomson Member B. Lanigan Member For the Grievor: B. Hanson, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: J. F. Benedict Manager, Staff Relations Ministry of Correctional Services Hearing Dates: May 7, June 25 & 26, 1984 2. The Board has been asked to decide two policy grievances concerning the Guelph Correctional Centre. Both grievances allege a violation of Article 18.1 of the collective agreement, which reads: The Employer shall continue to make reasonable 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-operateto the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees. The first grievance claims that the Ministry has violated this Article by failing to provide riot batons in the GATU and Back-End modules. The second grievance claims that the'ninistry has violated this Article by failing to assign a correctional officer to the Back-End module during the hours of midnight to 6:00 AJL Our hearing lasted three days, and the Board heard much evidence and was given certain documents pertaining to the security of the institution, which evidence it would be best not to relate. We shall deal in this award in rather more general terms than might be expected, in order to preserve the confidentiality of this evidence for security reasons. The Guelph Correctional Centre holds some 600 male inmates, which may make it the largest correctional institution in Canada. It is classed as a medium security facility. The inmate population consists of persons convicted Of almost any crime, and the average sentence is around seven months. 'The correctional staffing complement is roughly as follows: 196 CO1 and CO2 27 CO3 11 or 12 CM14 11 or 12 OM15 These officers, both male and female, work primarily in three shifts, 1 though there are several auxiliary shifts. The morning shift runs from midnight to 0~00 AM, and is staffed by some 30 officers. The day shift runs from 8:00 AM to 4:00 PM, and is staffed by some 52-54 officers. The night shift, with the same complement as the day shift, runs from 4:00 PM to midnight. We have been concerned primarily with two areas of the institution. The GATU (Guelph Assessment and Treatment Unit) holds 50 inmates for psychiatric and social assessment and treatment. Generally, inmates pass through the GATU, and do not stay in the Unit for extended periods of time. At the entrance to the GATU is a secured room known as the GATU module. It is manned 24 hours per day, and contains various pieces of security equipment and keys. From the module, various electric doors are controlled. On the other side of the institution is the "Back End". It consists of cell blocks and dormitories, in which some 450 inmates are housed. There are seven living areas in the Back End. In the Back End there is a module, like the one in GATU. It too is a secured room, containing various pieces of security equipment and keys, and from it one can control various electric doors. This module was built three and one half years ago, and was intended to control exit and entry from the institution itself through a sally port. The inmates go out daily in work gangs; and the module was constructed to assist in the control of the doors which are used for exit and reentry, and to facilitate the searches, and other security measures, which a,re part and parcel of the work gang process. This module is not manned between the hours of 9:00 PM and 6:00 AM. The electric doors are left open'; because there is little traffic and no one is entering or leaving the institution from this area at this time. Other doors are operated manually in the area. The first grievance arose when nightsticks were removed from the insti- tution. These are wooden instruments, some 18" to 24" long, which are no longer 4. '. Ministry issue. Up to November 1983, nightsticks were kept in the GATU module, and in the Main Vault. They were issued on rare occasions for use in emergency situations. under the authorization of the shift supervisor. Now there are riot batons, some 3' to 3'6" long, stored only in the Main Vault. They are available to correctional officers in an emergency, and only under the authorization of the shift supervisor. The Union suggests that it is not safe to have all batons in the Main Vault. There ought to be a supply 'in the two modules. We heard extensive testimony, and considered various documents concerning security arrangements in the institution, in particular dealing with emergency situations. We learned of the ICIT teams (Institutional Crisis Intervention Teams), which are specially trained and equipped to move into emergency situations. Each team has 5 officers, who are dispersed in the institution during regular conditions, but can be assembled when necessary. There are eight ICIT teams at the Guelph Correctional Centre, and one or two teams are on duty at any one time. We heard much evidence concerning the types of emergency that can arise, the way in which responses begin and are organized, and the routes which can be used to reach various points in the institution. We considered the Emergency Procedures Book, which begins as follows: While it is not possible to foresee the exact nature of a disturbance, nor the time that it may occur, there should be predetermined and well defined plans of-action for coping with such emergencies. All available Officers should NOT RUSH to the scene of the emergency. A small number of mficers should be kept away or remain away from the scene until the situation can be evaluated and the 1NSTlTUTlON CRISIS INTERVENTION TEAMS have been alerted. Each incident will present its own peculiar problems, but regardless of the type of emergency, our first concern is CONTAINMENT, SAFETY OF STAFF and non-participating inmates and eventual CONTROL of the situation. 5. Immediate action must be taken to ensure that the area where the emergency occurs is made as secure as possible in order to prevent a break-out, and this action usually requires good judgment and common sense. Officers assigned to the emergency area should proceed there CALMLY and QUICKLY. All Staff should condition themselves (give some thought) to the possibility of an emergency situation occurring in their area of duty, and knowing the physical layout of their area they should mentally plan,what they would do in a given situation. In our view, the security arrangements, and the location of the riot batons only in the Main Vault, seem reasonable, given the various considerations which have to be taken into account in formulating security and emergency procedures to deal with a myriad of possible situations. In particular, Mr. Taylor, Superintendent of the Centre, impressed us with his evidence concerning the need to maintain centralized control over the riot batons. and the manner in which a response to emergency situations is organized. The Union argued that one was not taking all reasonable precautions for the safety of the correctional officers unless the equipment was located in the most accessible places, and, all things being equal, the closer the equipment, the more accessible it would be. We do not agree. We are satisfied from ail the evidence and argument before us that the safety of the correctional officers depends on many variables, and on an overall security planning scheme. It is simply not the case that greater safety comes from closer proximity of the riot batons. For these reasons, we dismiss the first grievance. The second grievance concerns the manning of the Back End during the period from midnight to 6:00 AM. At that time, in the Back End, there are two officers in each of the seven living areas (cell blocks and dorms), and a "back end officer". The officers in the living areas do not have keys to get out.' They are patrolling in the areas, and are overseeing groups of inmates asleep in CeliS or dormitories. The back end officer spends much of his time near the back end module, which is locked and not manned at this time. This officer does 'a half- 6. hourly check of the living areas, carrying a checkboard on which the officers in the living areas sign to indicate that they are all right. The only inmates with which this officer will come. in contact during his shift are on their way to the hospital (within the institution), or on their way perhaps to some other living area for security purposes, or some other reason. The back end officer will be notified that thereis an inmate who must go to the hosdital, and he will go to the living area, where the inmate is released by the officer in the living area, and then the back end officer will escort the inmate down the stairs and to the exit from the back end. Similarly, he will escort the inmate from the entry to the back end back to the living area, on the inmate's return from the hospital. The Union's concern is that the back end officer may be assaulted and overpowered by the inmate while the officer is on single escort. And this could lead to further serious consequences once the inmate laid hands on the keys carried by the officer. The Union suggests that this dangerous situation should be remedied by manning the back end module during the period in question. The evidence disclosed that this system of manning the back end during the hours of midnight to 6:OO AM has been in place for at least twenty years and there has never been a single incident. If the back end officer is concerned about escorting the inmate alone, the officer carries a radio and he can ask for help before he collects the inmate. In our view, the risk is infinitesmal, given the total experience of the witnesses and the number of inmates involved over time. Article 16,l speaks of "reasonable provisions" (emphasis added) for the safety and health of the employees. And this is echoed in section 14(2)(g) of the Occupational Health and Safety Act, which imposes a duty on an employer to "take every precaution reasonable in the circumstances for the protection Of a worker" (again, emphasis added). There is no obligation t0 gUarantee an employee’5 Safety 7. against every possible risk, no matter how remote the possibility that it will occur. The collective agreement and the legislation contemplate "reasonable" precaution. In his argument on behalf of the Ministry, Mr. Benedict drew our attention to the Ministry of Correctional Services Act and its regulations. He emphasized that the legislation envisaged contact between correctional officers and inmates, and this meant necessarily that not all risks can be eliminated. In particular, reference was made to section 4 in the Act, which reads: It is the function of the Ministry to supervise the detention and release of inmates, parolees and probationers and to create for such persons a social environment in which they may achieve changes in attitude by providing training. treatment and services designed to afford an.inmate, parolee or probationer the opportunity for successful personal and social adjustment in the community, and, without limiting the generality of the foregoing, the objects of the Ministry are to, (a) provide for the secure custody of persons awaiting trial or convicted of an offence; (b) establish, maintain and operate correctional institutions; (c) ~~~~~~~is~s~~ofal~m~~~~lities designed to assist in the ; . . . . . . (f) provide programs for the prevention of crime. Section 20(2) makes it impossible to refuse the custody and control of an inmate: The director or superintendent as the case may be, shall receive into the institution every person delivered under lawful authority for detention therein and is responsible for the custody and supervision of such person until the term of imprisonment is completed or until the person is by warrant transferred or otherwise discharged in due course of law. In our view, he is correct. It is necessary to balance the safety of the employees against the need for care and custody of the inmates and the purposes Of the : 8. institution. Proper planning can reduce the potential or likelihood of~incidents, but it is not possible to eliminate all conceivable risks. In sum, we find that the Union failed to demonstrate a real or‘serious possibility of harm resulting from the failure to man the back end module during the hours of midnight to 6:00 A#. It is not just that,no incident has occurred in these circumstances in at least 20 years, but the possible risk suggested by the Union seems so remote that there is no need to take additional precautions, if the standard is one of reasonableness. And even if there were a possibility of harm befalling the officer, we are not convinced at all that it would be substan- tially reduced by manning the back end module. In short, we dismiss the second grievance for.these reasons. Done at London, Ontario, this 24th. day Of August , 1984. Vice-Chairman I.--Thomson, Member 8. Lanigan, Member 1.. 2. 3. 4. 5. 6. 7. '8. 9. 10. 11. 12. ! 9. EXHIBITS Grievance re safety equipment Grievance re staffing ievels Second stage reply on 70/84 Collective Agreement Plans Plan Photographs Extracts from Standing Orders of Guelph Correctional Centre Extract from Emergency Procedures Book #3 Second stage reply on 69/84 Extract from Standing Orders - re escort Letter to Shift Supervisors re batons ADDENDUM I agree with the majority award but I wish to make the following comments: From some of tbe evidence and cross-examination of the Ministry witness it seemed to me there was a lack of candor when the parties were discussing Grievance 70184. I believe that if the explanation re the removal of nite sticks had been explained to the Union they may very well have accepted this. In Labour Relations there should be a full dis- closure and discussion of all facts in an effort to reach a mutual understanding. To evade this by using different terms to describe equipment or events is not the way to accomplish this and perhaps save the grievance from coming before the Grievance Settlement Board. I.J. Thomson /lbw