FPSLREB Decisions

Files: 165-2-201 165-2-202

Canada Labour Code, Before the Public Service Part II Staff Relations Board BETWEEN GEORGE CZMOLA AND CHARLES RODIER Applicants and TREASURY BOARD (Solicitor General - Correctional Service Canada)

Employer RE: Reference under subsection 129(5) of the Canada Labour Code Before: P. Chodos, Vice-Chairperson For the Applicants: Art Curtis, Philippe Trottier, Public Service Alliance of Canada For the Employer: David Merner, Counsel

Heard at Winnipeg, Manitoba, September 17 and 18, 1998. Written arguments submitted on October 9, 14, and 17,1998

Decision Page 1 DECISION This matter came before the Board as a result of the referral of two safety officers' decisions pursuant to subsection 129(5) of Part II of the Canada Labour Code, which provides as follows: 129. (5) Where a safety officer decides that the use or operation of a machine or thing does not constitute a danger to an employee or that a condition does not exist in a place that constitutes a danger to an employee, an employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing or to work in that place, but the employee may, by notice in writing given within seven days of receiving notice of the decision of a safety officer, require the safety officer to refer his decision to the Board, and thereupon the safety officer shall refer the decision to the Board.

The Board’s jurisdiction in respect of these matters is found at subsection 130(1) which states: 130. (1) Where a decision of a safety officer is referred to the Board pursuant to subsection 129(5), the Board shall, without delay and in a summary way, inquire into the circumstances of the decision and the reasons therefor and may (a) confirm the decision; or (b) give any direction that it considers appropriate in respect of the machine, thing or place in respect of which the decision was made that a safety officer is required or entitled to give under subsection 145(2).

Both the applicants are employed as correctional officers at Stony Mountain Penitentiary, a medium security institution located a few miles north of Winnipeg. The inmates at the institution are housed in units containing a number of cells on two floors, each of which is referred to as a "range"; the ranges radiate from an open central area called the "dome" that is separated from the range by a locked door or barrier. In the unit is a staircase connecting the upper and lower ranges. Adjacent to the cells on each range is a corridor; the corridors emanate from the locked door to the end of the range, which has a type of punch clock called a "deister". There is another staircase immediately outside each unit also connecting the upper and lower ranges. Each range can be viewed from the outside of the barrier. When the cell doors are open, the inmates have free access to the corridor area adjacent to the cells; however, the inmates cannot leave the unit unless the barrier door is open. The

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Decision Page 2 corridor area contains, among other things, tables and chairs as well as a refrigerator. The institution has a number of facilities, including a gymnasium, various workshops, as well as a kitchen, dining area and classrooms. There are alarm buttons contained in the classrooms, and a number of the other areas are surveyed by video cameras. It is common for staff and inmates to interact together in these areas.

On April 22, 1998, Mr. Chris Price, the Deputy Warden at Stony Mountain, sent a memorandum to all correctional staff advising them that “open range walks” would be introduced at the institution effective April 28, 1998. In essence, open range walks require the correctional officers to patrol the corridors of the range while the cell doors are open, thereby allowing the inmates access to the corridors. The memorandum also noted that: “In preparation for this change in procedure, the lighting on all ranges has been upgraded to meet Labour Canada specifications.” In his testimony Mr. Price indicated that the walls of the ranges were also painted in order to provide better illumination. Mr. Rodier, who is one of the applicants, stated that he had been made aware of this directive on April 28. At approximately 9:30 a.m. that day he was instructed by his supervisor, Mr. Bill Robb, to conduct an open range walk on ranges A2 and A4. He refused to do so, invoking Part II of the Canada Labour Code. Mr. Rodier explained that since 1984, when a riot had occurred in the institution resulting in the death of two correctional officers, only closed range walks were conducted at Stony Mountain. He noted that this is reflected in a Standing Order issued on January 30, 1991 (Exhibit 13) concerning Range Patrols. Under that Standing Order and according to long-standing practice, five correctional officers participate in closed range walks (i.e., while the inmates are locked up in their cells). Under the new standing order, only three officers are involved in conducting open range walks; one officer stands outside the barrier looking in; two others walk down the range, one walks “wide”, that is, he walks along the far wall of the corridor in order to get as broad a view as possible of the upper and lower tiers; they walk to the end of the range and punch the deister; they then walk back to approximately the middle of the range and walk up an open staircase to the second tier; as they are doing so, the officer at the lower barrier walks up the outside staircase to the upper range to maintain a line of sight with the officers inside the range.

Mr. Rodier noted that during the several seconds it takes the officer at the barrier to walk up a flight of stairs, the two officers inside the range are out of his or Public Service Staff Relations Board

Decision Page 3 her line of sight. Mr. Rodier described the ability of the officer at the barrier to observe their movements, as their “life line”. He expressed the view that, during the approximately twenty seconds it takes for that officer to go up the outside staircase, their safety is in jeopardy. Mr. Rodier noted that subsequent to April 28, he was given the option of leaving the lower range and using the outside staircase to gain access to the upper range, thereby maintaining the line of sight between the two correctional officers walking the range and the correctional officer at the barrier. However, on April 28, he was not given that option, and was required to use the staircase inside the range to gain access to the upper floor.

Subsequent to April 28 Mr. Rodier performed several open range walks in the company of Mr. Chris Price, the Deputy Warden; on those occasions, he had taken the staircase outside the range to gain access to the upper tier. Mr. Price recalled that he had accompanied Mr. Rodier on open range walks on Unit 1 on two occasions. On one occasion, he went down the range, came back and proceeded to the second level by using the outside staircase. On the other, they began on the top floor and had gone down to the lower floor using the inside staircase. Mr. Price noted that he leaves it up to the correctional officers themselves to decide whether they wish to use the inside staircase. He also observed that on April 28 it had been suggested that there should be a dialogue with the bargaining agent concerning range walks; some of the staff indicated that there was a lack of clarification, and wanted to have some discretion as to how to conduct range walks. Mr. Price stated that initially management wanted it done a specific way, that is, by using the inside staircase, and Correctional Supervisors were so advised. Mr. Price referred to a memorandum he had written which states that (Exhibit 16): ... Currently, all shifts are conducting the range walks with 3 staff. However, there are differences in the methods - some are completing the entire bottom floor then moving to the top, others are completing both floors of the range before moving on. The post order is subject to interpretation as it doesn’t clearly state which procedure should be used. For now, please allow staff to conduct them either way as long as they only use 3 staff.

Mr. Price also noted that on the morning of April 28 at 9:30 a.m. he observed that the majority of cell doors were locked; the only inmates who were out on the range were

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Decision Page 4 those who are permitted to use the phone or who work as cleaners; the cells were locked to give staff an opportunity to conduct a cell search.

Mr. Rodier expressed concern that the first memorandum issued from management which directed that there be open range walks, required that only the staircase inside the range be used by the correctional officers; he was concerned that, while the correctional officers currently appear to have the option to use the outside staircase, this option may change at any time (when taking a view of the Institution, the undersigned observed two correctional officers during a range walk using the inside staircase while the correctional officer at the barrier proceeded upstairs using the outside staircase).

Mr. Rodier also noted that he was not aware of any training being offered to the correctional officers respecting open range walks. He acknowledged that he had not filed any observation reports suggesting that the open range walks are more risky. He stated that it has always been the policy at Stony Mountain that correctional officers are not to carry radios or any other communications equipment while conducting range walks, because they could be taken away from them and used by the inmates to monitor information during a hostage incident. Accordingly, only the officer observing from the barrier has immediate access to a radio.

Mr. Rodier also stated that this summer he visited both the Prince Albert and Drumheller institutions; at both Prince Albert and Drumheller staff conducting range walks can take their radios with them; at Drumheller, officers are observed on video monitors.

Mr. Rodier noted that there were large numbers of gangs in the Institution, including several different biker gangs and a number of native Indian gangs as well as other ethnic groups; he estimated that out of a population of 400 inmates, there are about 125 members of organized gangs at Stony Mountain. In his view the existence of large numbers of gang members poses an additional threat to the safety of correctional officers. He also observed that it is a fairly common occurrence to find weapons in the possession of inmates as well as drugs and homemade “brew”; he has commonly encountered inmates who are under the influence of either alcohol or drugs. While there have been no hostage taking incidents while he has been there,

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Decision Page 5 there have been a considerable number of assaults as well as some inmate murders, and a “mini” riot in January 1997 (Exhibits 1, 2, 3, 4).

Mr. Terrence McKay is a Safety Officer employed with the Labour Branch of Human Resources Development Canada. On April 28 at 10:40 hours he was contacted by Mr. Len Haryski, a correctional supervisor, at Stony Mountain Institution, who advised him that there was a refusal to work under Part II of the Canada Labour Code by an officer at the institution. Mr. McKay stated that it was common to have two officers conducting an investigation; accordingly, Mr. Ed Francis was assigned as secondary officer to accompany him in his investigation at the institution. He arrived at 12:35 hours where he was met by Mr. Gunnar Ivans, the Assistant Warden, Management Services who is also the Co-Chair of the Safety and Health Committee. He was subsequently informed that Mr. Rodier had refused to conduct an open range walk because he would be out of sight of the officer at the barrier. He met with Mr. Rodier at 13:06 hours along with Mr. Gilles Chiasson, a correctional officer who is a shop steward. Another shop steward, Mr. Lorne Jacobson, who is a representative on the Safety and Health Committee also joined them.

Mr. Rodier was asked to complete a Refusal to Work Registration Complaint form. Mr. McKay reviewed with Mr. Rodier the nature of his complaint. Mr. Rodier outlined the procedure used in conducting open range walks. Mr. Rodier had informed Mr. Robb that he was refusing to work because he felt he was in danger when the officer at the barrier moves from the first level to the second level and consequently cannot view the correctional officers on the range. Messrs. Rodier and Robb contacted the other members of the Safety and Health Committee and the employer conducted an investigation, following which the employer concluded that there was no danger. Mr. Rodier was informed of this decision, and continued to exercise his right to refuse to work under the Labour Code, resulting in Mr. McKay being contacted.

Mr. McKay sought further clarification about Mr. Rodier’s safety concerns. Mr. Rodier explained that when the officer at the barrier walks up to the second tier, he would not be able to keep in sight the officers on the range. This raises the possibility of the officers being assaulted by one or more inmates while they are not being observed from outside the barrier.

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Decision Page 6 At 14:15 hours all the interested parties continued the investigation at Unit 1, ranges A to A-4. Mr. McKay was advised that each of the tiers contains 19 cells; during the day these would hold 26 inmates; however, at the time of the refusal at 9:30 hours, there would be 10 or 11 inmates on the range. Mr. McKay stated that on that morning there was nothing unusual noted on the range, that is, there were no threatening gestures or perceived threatening activities. Mr. McKay inquired if there were any rumours of possible violence at the time (i.e. secret intelligence information known as “KITES”) and was told that there was none. The Institution was operating at the time with a full complement of staff. Mr. McKay observed the ranges at the barriers; he saw nothing to indicate any violent behaviour. Mr. Rodier had told him that, as the two officers who conduct the range walk are not allowed to carry radios, pepper spray, or personal alarms, their ability to call for assistance, or to protect themselves, is restricted if an incident occurred while out of the line of sight of the officer at the barrier. Mr. Rodier also advised him that he had received no specific training on conducting open range walks.

Mr. McKay and Mr. Francis then reviewed the matter and examined the memorandum of April 22 concerning the range patrols. They were advised by Mr. Ivans that this memorandum was sent to all staff by internal mail on April 22nd. Mr. Rodier confirmed that he had received a copy. They were also advised by Mr. Ivans that this was a national policy, i.e. that open range walks were conducted at all medium security institutions, and that there had been ongoing discussions over the past year at labour-management committee meetings concerning this matter (ref. Exhibits 8, 9, 10). They were also told that approximately 10 correctional officers had been to other institutions to observe and become familiar with open range walks. Mr. McKay noted that it was common for other correctional staff such as teachers and shop instructors to work with inmates in open and unsecured areas such as classrooms and workshops; in addition, maintenance people often work alone with inmates. They also were given and reviewed a signed correctional officer position description ( Exhibit 11).

At approximately 16:35 hours a meeting was again held in the Boardroom. Mr. McKay discussed the components of “inherent danger”, reviewed the conditions on Unit 1 at the time of the investigation, and concluded that there was no danger present. He then informed the parties of the appeal process, and on May 4, 1998, he Public Service Staff Relations Board

Decision Page 7 hand delivered to Mr. Rodier a copy of the safety officer’s decision. The following day he provided a copy of his decision to officials at the Institution. On May 6th he received Mr. Rodier’s request for a reference to the Board.

Mr. McKay was asked to describe the configuration of the ranges. He noted that on the second floor there is a concrete walkway, with the cells located on the right side; on the left side are guard rails; approximately one half way along the range is a platform for a stairway leading down to the lower level. He estimated that the width of the walkway would be between 30 inches and three feet; the guard rails are approximately three to four feet high. He did not recall if the cells are indented (the undersigned observed that they are indented). It was his observation that the ranges were very quiet at the time. He recalled that the cell doors were open and he observed one inmate come out to the corridor, look around and go back into the cell. He believes that Mr. Rodier was with him throughout the investigation.

Mr. McKay stated that the term “inherent danger” is not defined in the Code; the Department has issued internal program guidelines (Exhibit 12) which address in general what is an inherent danger. Among other things, this document identifies some of the characteristics of inherent danger, e.g. ”it is a permanent attribute or quality of a job; it is an essential character or element of a job; it is likely or probable to cause injury unless special precautions are taken; it exists regardless of the method used to perform the work”. Mr. McKay stated that he would determine if there are “special precautions” in place. In his opinion the possibility of assault is inherent in the job of a correctional officer.

The applicant, Mr. George Czmola, has been a correctional officer at Stony Mountain Institution for 21 years. Mr. Czmola was present at the institution in 1984 when a riot took place which resulted in the murder of two correctional officers. Mr. Czmola described in detail the events that he observed on that occasion, including seeing the bloodied body of a colleague, an officer named Wendl. Mr. Czmola was required to remain at the Institution at that time for thirty-five hours before he was allowed to leave. Mr. Czmola noted that there was another hostage taking in 1982, which he attributed to the policy of conducting open range walks in the maximum security wing. After 1984 the institution brought in a policy of having only closed range walks and there have been no hostage takings since then.

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Decision Page 8 Mr. Czmola stated that there have been a lot of assaults at Stony Mountain and at least twenty inmate murders since he has been there. On a number of occasions he has participated in cell searches where correctional officers have discovered homemade knives, needles, bullets, drugs and homemade brew. It is not unusual to find inmates under the influence of drugs and alcohol. He observed that there has been a proliferation of gangs and in general inmates are more organized now. He also noted that an inmate named Myron, a gang enforcer, was killed in 1996. In January 1998 there was a riot by inmates (Exhibit 2) who were advocating among other things the introduction of open range walks.

Mr. Czmola began his shift on April 28th at 15:35 hours. He was directed to do his first open range walk at 7:00 p.m.; he told the Keeper that he was refusing to do it because of fear for his safety. As a consequence Mr. Francis went back to the institution (this time as the principal safety officer) with Mr. McKay at 9:20 p.m.; he met briefly with Mr. Ivans and was advised of Mr. Czmola’s refusal to do the open range walk. Mr. Ivans also indicated that an investigation had been conducted in the presence of Mr. Ivans, Mr. Victor Sinclair who was Mr. Czmola’s immediate supervisor, Richard Chartrand and Mr. Czmola. Mr. Czmola was asked to complete a Refusal to Work Registration Complaint form; Mr. Czmola, Mr. Chartrand, Mr. McKay and Mr. Francis proceeded to view the ranges in question (B-2 and B-4); Mr. Francis observed three inmates on the range at the time; one was on the phone; the other two were wandering the corridor; other inmates were in their cells. Mr. Francis and Mr. McKay then proceeded onto the range; the inmates were locked in their cells at this time. They went from one end of the range to the other and proceeded up the inside staircase. They took some measurements including the indentation of the cell doors which are recessed 15 inches from the wall. They noted that from the outer extremity of the indentation to the guard rail the width of the corridor is 36 inches; the distance from the cell door to the rail is 51 inches and the height of the rail is 33 ½ inches.

Mr. McKay and Mr. Francis had a short discussion concerning the events up to that point; they reviewed the additional information which they had received earlier in the context of Mr. Rodier’s refusal to work that day, i.e. Mr. Price’s memorandum, as well as the minutes of union-management meetings. They met with Messrs. Ivans, Sinclair, Chartrand, and Czmola where they sought clarification of the seven points Public Service Staff Relations Board

Decision Page 9 which Mr. Czmola had noted in his complaint form. Mr. Ivans had advised that one of the reasons for the open range walks was to have more interaction between the correctional officers and the inmates, thereby allowing more opportunity to observe anything unusual. Mr. Francis had asked whether there was anything out of the ordinary that evening which might suggest there was danger; he was advised by Mr. Chartrand that an inmate on Unit 4 had told a correctional officer “to come down and party”; he suggested that this may have been intended as a threat. Mr. Francis observed that this did not occur on the range in question and he therefore dismissed this information as not being relevant. Mr. Francis stated that, while he appreciated the seriousness of the issue of open versus closed range walks, he did not find anything out of the ordinary that evening. By 12:45 a.m. he had concluded that there was no danger and so advised Mr. Czmola, who was provided with a written report on May 4th. On May 6th Mr. Czmola requested Mr. Francis to refer this matter to the Board.

Mr. Francis acknowledged that he had conferred with Mr. McKay with respect to the Rodier decision. However, he maintained that he had no preconceptions about this matter and had no idea as to the reasons for the Czmola refusal prior to arriving at the Institution. He did inquire into past practice concerning range walks and was advised that prior to April 28 there were five correctional officers participating in closed range walks. Mr. Czmola had described to Mr. Francis how the direction to conduct the open range walk affected him; it was apparent that he was upset and concerned by this direction. With respect to the points raised by Mr. Czmola in his complaint including the presence of contraband, he did not inquire into the number of instances when contraband had been found, or stabbings or hostage takings had occurred. He agreed that there were various instruments for wood working at the institution and that tattooing needles do exist there; in his view, it is the responsibility of the correctional officers to deal with these matters.