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HomeMy WebLinkAbout1984-0381.Warner.86-04-21 Decision180 WNDAS STREET WEST. TORCNTO. ONTARIO. M5G 1Z8 -SUITE 2100 TELEPHONE: 416/598- 0688 381 /84 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : Before : For the Grievor: For the Employer: Date of Hearings: OPSEU (J. Warner) - and - Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Empl oyer E.B. Jolliffe R. Russell Member W. Shuttleworth ‘!ember V i c e - C h a i rma n Ms. L. Sterling Co unse 1 Cornish & Associates Barristers & Sol ici tors J. Hannah Counsel Personnel Services Branch Ministry of Correctional Services July 25, 1985 September 4, 1985 -2- DECISION Cn march l3. 1984, Mr. John warner ' a correctional Officer 2 at the Millbrook correctional centre was suspended without pay for 10 days The penal::; was imposed on three grounds: that he had, on the night of january 28, left open the south corridor door known as 144)) of the detention unit when he entered the are:: than during the same night -.e did not operate the Detention unit control room in accordance with standing Orders: that he had not ensured "back up coverage when clock rounds were in progress In his second letter to Warner, Exhibit 3, the Superin- tendent added: While I a, satisfied that you are well aware pf the standing Orders, I’m not convinced that you fully appreciate the seriousness of your behaviour as outlinted during our meeting, your failure to comply with standing orders and security procedures jeopardized the overall security of the institution, your own safety, the safety of other correctional officers, and the safety sf inmates under your care. As discussed during our meeting, I am most concerned over your extremely poor recollection of events on january 28, 1984. foru representative indicated that you were preoccupied with personal family problems during the time of the incident and for this reason your recall was extremely poor. . -3- However, it was observed throughout the investigation, and during our meeting, that following exhaustive questioning, you were able to recall the events of January 28, 1984. The evasiveness and lack of co-operation which you displayed impeded the entire process and in my opinion was totally inappropriate. Mr. Warner grieved against the suspension. In the course of the grievance procedure, the suspension was reduced from 10 days to three days. Nevertheless, grievances have come to arbitration. Throughout a two-day hearing three witness including the grievor, were called to testify and 13 exhibits were admitted into evidence. Exhibit 8 includes 19 photographs of doors, rooms and corridors in the Detention Unit, which xsre frequently mentioned in testimony.. Exhibit 7 is a floor plan of the Unit, showing the numbers of most doors and rooms mentioned by witnesses. The Employer called Superintendent G.B. Preston and Staff Training Officer W. Currier. The Superintendent gave lengthy and detailed testimony about his observations and conversations when he inspected the unit between 1.00 and 2.00 a.m. on January 29, 1984, accompanied by Senior Assistant Superintendent A. Dew. Nevertheless, for the purpose of assessing the grievor’s conduct, it is probably more importar.: to review his own version of what he did and what he failed t: do -4- during the night in question.. Much of his testimony is consistent with that of the Superintendent and also with the findings of the training officer. The latter had not attended the inspection but later interviewed the grievor as well as three other officers and made a lengthy report on February 3, which resulted in not one but several disciplinary penalties. According to the grievor, events on th? night of january 28-29 may be summarized as follows. His "only concern at that time" was the condition of his wife, who had serious medical problems. Scheduled to work from 11 p.m. to 7 a.m., he arrived about 10.30 p.m., reporting first to the squad room, not part of the Detention Unit but very close to it. He met other members of the staff and received keys from an officer of the shift which was ending. Accompanied by his shift partner, Ms. Judy Tucker, and carrying the key to the door leading into the Detention Unit and the key to the "Control Room" within, he opened the former (known on the plan as 144) at about 11.01 p.m. and then entered the Control Room, (known as 140) where he relieved another officer. The grievor had agreed with Ms. Tucker that he would . remain in Control for two hours while she patrolled through the corridors once every 20 minutes. Then he would do the patrolling for two hours while she would watch from the Control Room. This was the prescribed arrangement. Since one round of patrolling takes from seven to 10 minutes, punching five clocks on the way, it is customary for the patrolling officer to sit down between patrols in Room 102, which is directly opposit the Control Room. , The Control room has a self-locking door, but the door known as 144, which gives access to the Detention Unit from the adjacent corridor, had not been locked. The grievor raises an issue about door 144. He contends that it was often left unlocked particularly at night when inmates are locked in their cells further he asserts that his supervisor, Mr. Barry Heard, did not wish the door to be locked, and it was open when he visited the unit between midnight and 1.00 a.m. Other supervisors had also left the door open from time to time. The grievor admits that he lift the Control Room for a few seconds between midnight and 1.00 a.m. He says he merely crossed the hall to the Storage room for the purpose of reminding Ms. Tucker that her next patrol was five minutes overdue. He also admits being aware that in was contrary to Standing Orders -6- to leave the Control .Room, from which he could maintain surveillance over almost all of the corridors which divide two rows of cells. At 1 a.m. Ms. Tucker came to Room 141 and the grievor opened the door to admit \ her to the control Room, 140. It was his turn to go on patrol She gave him the key to door 144 and he gave her the key to the Control Room. He did not close the door behind him as he left. His next step of course was to do his first patrol of the night. Returning at about 1.10 a.m. ne found Ms. Tucker sitting in the Storage Room, which he described as "very unusual." At about 1.20 a.m. he was relieved by another officer, Mr. David West, who did the next patrol for him The grievor departed, leaving door 144 unlocked, and proceeded to the squad room for his coffee-break. He was away "20 or 25" minutes. Mr. West signed the log at 1.20 a.m. recording his patrol. The grievor signed for the next four patrols, between 1.50 a.m. and 2.50 a.m. The log also shows a "Count" of inmates made at 3.00 a.m. However, on his return from the Squad room about 1:30 a.m. the grievor had noticed that Superintendent Preston and his Senior Assistant Superintendent A.M. Dew were visiting the unit -7- on what has been described as a weekly inspection. At the time, it appears, the grievor was not aware of what had occurred during his absence so that he proceeded on his rounds in the usual way. At 11 p.m. on January 30, the grievor was called into an . off ice by Acting Deputy Superintendent Whibbs and Staff Training Officer Currier. His testimony is that "after about 20 minutes I realized I was involved too." He was referring of course to the investigation being conducted into breaches of security, discovered by the Superintendent during his visit to the Detention Unit in the early hours of January 29. The grievor said further that he "almost went absent" or: the night of January 30. His wife's condition was much worse. He had to take her to the Peterborough Hospital and could not complete the shift. Cross-examined, the grievor agreed that his suspension. for 10 days had been reduced to three days in the course of the grievance procedure, but he felt the Superintendent had not beer. fair to him. He admitted Supervisor Heard had never told him directly that the "front door" should be left unlocked and he knew of no other supervisor tolerating that practice. He further admitted it was a breach of security. -8- there was considerable testimony about other aspects of the case most of which had little to do with the grievor's responsibility for preaches of security. Mr. Currier's investigation resulted in his report to the Superintendent on february 3. Actually, most of the questioning had Seen done by acting deputy Superintendent Whibbs, but Mr. Currier also asked questions and made copious notes of the answers the report which is Exhibit 9, relates to four employees, including the grievor. Tk.e first to. be interrogated was Shift Supervisor Barry heard classified OM-15, who was found to have tolerated, encouraged or ordered the practice of leaving door 144 unlocked, contrary ta Standing. Orders. the second was Correctional Office Judy Tucker, found by the superintendent asleep in the Storage room at about 1.30 a.m. on January 29, a point on which he testified in detail at the hearing of this case: ks pointed out that not only was Ms. Tucker asleep tk-5 front door, 144, was unlocked, the door of Room 141 was open the door between 141 and the control Room was open and the control Room itself was not occupied by anyone. It was the responsibility of Ms. Tucker not the grievor to be there at the time. -9- Another officer questioned was Mr. David West, noticed by the Superintendent (during his visit) to be reading a newspaper in the interview Room. At that time he was supposed to be relieving the grievor who had gone to the Squad Room for his coffee-break. according to the record in the Unit log, he made or completed a patrol (in place of the grievor) at 1.20 a.m., so that he would have been entitled to a brief rest at 1.30 a.m. when the Superintendent arrived. It seems unlikely however, that he had made the patrol under the observation of Ms. Tucker, who was not in the Control Room when the grievor made the previous patrol and who was found to be asleep when the Superintendent arrived, although she denied it. The Board was informed that the three employees named above received disciplinary penalties, but of course such penalties are not before us for consideration. The only grievance we have to decide is that of Mr. Warner. What does require some consideration is Mr. Currier's report of the interview on January 30 with the grievor. He recorded it as follows - 10 - Mr. John Warner, CO 2 This employee was interviewed in the Deputy Superintendent's. office, at approximately 23:00 hours on mOnday January 30/84, At this time the genera! circcumstances surrounding the reason for tic interview were made known to Mr. Warner A. previous witness Ms. J. Tucker, had given riss to the belief that on at least two occasions during her tour of duty as patrolman the control module was unmanned - in her words "There were occasions when Mr. Warner was not in the control module. Once when I returned from E, patrol and another time when I vas starting my patrol.". as a result of this information we posed the following questions for Mr. Warner: Q) were you in the control module when Ms. Tucker carried out her patrols between the hours of 23:10 and 00:50? A) "Yes, I stayed in the control room while she did all her patrols. Maybe on one occasions I came outside". As a result of other areas of concern regarding the operation of the detention unit we continued our questions as follows: Q) Q) When you and Ms. Tucker exchanged positions, at what time did you carry out your first patrol?" About 01:10 I think." "Who was in the control module?" "Nobody - Judy was sitting in the office storeroom. this was odd as she should have been in the control module." I figured "Then you carried out a patrol without a cover, contrary to S t and in g o rd er s ? well did you or didn't you?" ! Q Q) "When you were relieved by Ms. Tucker did she enter the module to relieve you!" "Yes, she did." Were the module doors closed as you left?" "I don't recall, we were both in the hallway when I handed her the key "From approxicstely 23:20 hours to 36:00 hours on that date, the front detention unit door ws been - is chat correct "Yes, but it is common pracice to leave it open. Heard and other supervisors do it What did you do about it?" "Like I said, it: is common practice to leave it open." CONCLUSIONS That Mr. Warner did leave his post admitting that "Maybe I came outside one one occasion", thereby leving the control module unmanned. Statements by Ms. Tucker tend to indicate that he left his post on more than one occasions. That on his own admission, he was aware of the unmanned and unlocked condition or' the control module, never the less, proceeded to carry out a punch clock patrol, wi thout the required cover. On his own admission he acknowledge that the front detention unit door was open and notwithstanding his comment of "It is common practice to leave it open.", he did nothing to correct this situation Finally sir, I would be remiss if I failed to comment on this employee's performance during his interview his failure to respond positively and accurately, to even the most simple of our questions was infuriating to say the least responses such as "I can’t recall - maybe I did", "I may have", "probably":. It was with extreme diff iculty - that we obtainied as many facts as we did but only after much promoting and insistence. - 12 - Although Mr. Preston has emphasized that the grievor answered questions in a vague and unsatisfactory manner, the board notes that his testinony corresponds closely with what he said. at the interview of january 30. It is not easy to understand management's acceptance of Ms. Tucker's statement that the grievor was not in the control module "Once when I returned from a patrol and another time when I was starting my patrol." Some of her other statements were not believed by management. Moreover, both at the interrogation and in his testimony, the grievor acknowledged that there were breaches of security "contrary to Standing Orders" by himself as well as others on the night of January 29-30. The only excuse he has offered is that he was not himself due to the unfortunate condition of his wife, who was taken to hospital the next night. Unlike other wings at the Millbrook Correctional Centre, the Detention Unit has no outside cells. There is a corridor running the length of the wing and another along the opposite side. A third corridor extends through the centre, between two rows of cells. Each cell has a door to the corridor, through which the inmate can be viewed, and also a one-way window through which the inmate can be seen from the inside corridor. Patrol's must be made along all three corridors where there are clocks to - 13 - be punched en route. The obvious reason for the precautions taken is that most inmates in the Detention Unit can be described as "prob le ms For the protection of inmates as well as officers, the policy is to observe inmates at regular intervals throughout the hours of the night shift, and also to keep patrolling officers under observation at all times, either visually or by T.V. hence the importance of constantly manning the control module. The following rules Exhibit 5, are among those set out in Standing Orders: CHECK OF wINGS Visual ckecks of all inmates shall be made at intervals not exceedin; 20 minutes. These checks are to be recorded on the special sheets for this purpose. Clock rounds will be made at intervals not exceeding 20 minutes, commencing at lights out. After lights out the doors at the west end of the inmate corridor and the dayroom doors, may be left open to permit easy access during night patrols. GRILLE Access to or from the detention wing is through a sallyport. The grille gate that is part of this sallyport may be left open between the hours of 22:30 and 06:30 daily, except on saturday Sunday, or holidays, then the grille may be left open unitl 07:30 hours OPENING CELLS There shall be no more than one cell door opened at a time and there shall be OFFICERS present when the door Is opened. CONTROL room Staff shall not congregate in the control room, only the officer assigned shall enter the ROOM with the exception of the Supervisory staff. while on round The detention wing control room will be manned 24 hours a day. The officer assigned to the control room will be responsible for controlling access to the wing and opening the cell doors etc., when required The control room officer will monitor all activities in the wing, either visually or with the closed circuit T.V. provided. The control room officer will be responsible for recording all movement in and out of THE wing end all activities in the wing, in the log book provided There shall be. no food or beverages In the control room ENTERING OR EXITING the control room When entering or exiting form the control room this will be done through the door on the west side of the control room leading to the inmate waiting area. this door will be keyed manually. The officer will be let In or out of the inmate waiting area electrcnically there shall be no inmates in the waiting area when staff are entering or exiting the control room. The above rules are both reasonable arid necessary. It is in the interests of the officers themselves that such truls be respected at all times are strictly enforced 15 It is clear on the evidence that there were serious breaches of security on the night of January 29-30, for some of which --- but not all --- the grievor was responsible. These Include, as alleged by the superintendent 1) Leaving the corridor door open or unlocked when the grievor entered and departed from the Detention Unit; 2) Leaving the Control modul at least once when it was his duty to remain there; (3) Failing. to ensure that he was under observation at all times when making his patrols. It may be added that the grievor was at fault in taking little or no action when it must have been apparent to him that Ms. Tucker was neglecting her duties. Having regard to the g r i e v r s good record the Board is of the opinion that a 10-day suspension was an excessive penalty resu l t i ng from breaches of security for which others including the shift supervisor, were principally responsible. That penalty, however after reconsideration, was reduced by management from 10 days to three days 16 - The Board concludes that a three-day suspension. is not an excessive or inappropriate penalty in respect of at least three breaches of security for which the grievor must accept responsibility There can be sympathy for his personal misfortunes at the time in question but that factor does not excuse the carelessness. which could have had serious consequences for himself and others. The three-day suspension must be upheld \ The grievance is dismissed. Dated at Rockwood, Ontario this 21st day of April,, 1986 EBJ :sol E. B. Jolliffe, Vice-Chairman W. Shuttleworth, member R. Russell, Member