FPSLREB Decisions

[1]    The grievors, Gail Campbell, Brenda Fournier, Mary Hodge, Marie Sieben, and Stephanie Wescott, are all financial specialists (CR-5) employed by the Correctional Service of Canada (CSC) at the Drumheller Institution, who grieve the rate of their penological factor allowance (P.F.A.) at the medium limited rate and seek to be paid at the medium frequent rate. Following opening statements, the parties and I attended at Drumheller Institution for a site visit. We then reconvened for the hearing of evidence and submissions.

[2]    The Drumheller Institution is a penitentiary located at or near Drumheller, Alberta, and contains a medium and minimum security component. A medium institution has a tightly controlled perimeter allowing for more freedom of movement within the institution itself.

[3]    The primary work site for the grievors, the administration building, is situated within the perimeter boundary, which contains the medium security portion of the penitentiary. One has to walk through a reception building, which contains a security person, cameras, and a metal detector, in order to enter the perimeter to the medium security portion of the facility. The minimum security facility is located outside the perimeter.

[4]    Up until September of 1998, the grievors worked in the human resources building (HR building), adjacent to the minimum security facility, located outside the perimeter of the medium institution. At that time, the grievors received the P.F.A. at the medium limited rate. In 1998, the pay section and inmates accounts moved to the second floor of building 31 (the administration building). The P.F.A. rate remains at the medium limited rate.

[5]    The grievors are all long-term employees of CSC in the inmate pay and accounts section, classified now as financial specialists, CR-5. The grievors were reclassified from CR-4 positions, since the filing of the grievance.

[6]    Gail Campbell started in the administration section with CSC in 1986 and transferred to accounts payable in finance in August 1993. She is a CR-5 financial specialist in the Chief Finance Assistant position. She worked at the cashier desk for approximately 10 years. Her duties consisted of giving cash to staff for travel, inmate release money, posting of transactions to the computer system, and helping at the inmate accounts desk.

[7]    Brenda Fournier has worked for CSC for nearly 21 years. She started with the inmate employment board, and then went into finance. She works on the inmate accounting side of finance. She has been at the inmate pay desk for 21 years.

[8]    Mary Hodge has worked with CSC since 1995. She was at the inmate pay desk at the HR building when she started. She is now classified as a CR-5 financial specialist. Ms. Hodge is currently working as the cashier and in her next rotation will be returning to the inmate pay desk. She has sole custody of the cash cart and has to ensure that the cash cart contains $150.00.

[9]    Mary Sieben has been working for CSC at the Drumheller institution since April 1989. She started in a casual position as a unit clerk, working at the HR building. She moved to finance as a financial specialist and she works in inmate accounting and has 13 years' experience in her present position.

[10]    Stephanie Wescott started working for CSC in 1993 as a contract staff person with Corcan. After returning from maternity leave, she started in finance in November of 1996. She works on the accounts payable side of finance, with inmate accounts. Her work involves the accounts payable, the salary accounts system, the P.F.A. and position numbers for staff. She has worked at the cashier desk, for approximately 1.5 to 2 years. She has not done any work with inmate pay.

[11]    I note that the proper P.F.A. rate has been a point of contention for some time between the financial specialists and CSC. This issue was raised by the financial specialists with various supervisors, after the move from the human resources building to the administration building.

[12]    The P.F.A. rate issue appears to have been raised by the grievors with the Chief of Finance at the time, Terry Birch, following the move inside the perimeter. In a letter written by the grievors to PSAC President Gary Mohl, dated December 20, 2001, it is apparent that the grievors did not have a response from Mr. Birch. It also appears that grievors raised the issue with the successor Chief of Finance, Dan Elliot, and it appears that no employer response was communicated to the grievors. It appears that a P.F.A. review was conducted by the employer at some point, and the employer concluded that the financial specialists did not assume custody of inmates, had limited access to inmates in a locked area and had daily contact with inmates. A note on the P.F.A. review indicates:

Works in building where inmates attend classes. Intermingle with inmates daily while going to meals, taking documents to other buildings, and attending meetings.

[13]    The P.F.A. review is undated. The employer filed in evidence a memorandum from Remi Gobeil, Deputy Commissioner RHQ Prairies, to Terry Birch, Chief of Finance, Drumheller Institution, dated April 24, 1998, which reads as follows:

Request for Review of P.F.A. Levels

I am in receipt of your request to review the level of P.F.A. for the Finance staff due to their movement inside the institution.

All staff working in a penitentiary are entitled to P.F.A.

To be entitled to P.F.A. at the frequent level, you must assume responsibility for custody of inmates AND be exposed to immediate hazards or physical injury by assault and other disagreeable conditions on a frequent basis. Since your staff do not assume the responsibility for the custody of offenders, they are not entitled to P.F.A. at the frequent level. They remain entitled to the P.F.A. at the limited level.

[14]    The employees presented the grievances on January 21, 2002, seeking the following relief:

request penological factor allowance to be paid in accordance with article 59 and other related articles/sections

[15]    In the second level response dated April 16, 2002, the Deputy Commissioner for the Prairie Region responded as follows:

[... ] Although it is clear that you are required to interact with offenders during the course of your duties, there are no direct custody responsibilities associated with them. ... Given that five Finance Specialists, with no specific rotation period, share the responsibility for Inmate Accounting/Pay; it is reasonable to determine that the offender contact is Limited (sic).

[16]    The final level grievance response, dated January 21, 2004, is as follows:

[... ] I have conducted a thorough review of your grievance and have determined that you do not have direct custody responsibilities associated with the inmates nor do you have a specific rotation period but rather share the responsibility for Inmate Accounting/Pay. As a result I have concluded that the level of P.F.A. you are receiving is in accordance with Articles 59.02 and 59.03 of the Program and Administrative Services Collective Agreement. ...

[17]    The grievances were referred to adjudication by the bargaining agent on February 27, 2003. The parties attended for mediation; however, the mediation session did not result in the resolution of the grievances.

Physical Layout

[18]    It is important to have some understanding of the physical layout of the administration building. The administration building is a two-story building. It has two entrances and two stairwells to the second floor. One entrance is near the main controlled entrance into the medium security portion of the penitentiary grounds (the front entrance), and one entrance which is connected to a caged walkway, and then to the breeze way (rear entrance). The front entrance of the administration building is located in open ground near the main controlled entrance into the perimeter of the institution. An inmate can access the open ground near the controlled entrance, by walking past the bubble, which is a checkpoint, controlled by correctional officers. Generally, inmates are only required to show a pass at the bubble, when going to the hospital, to admissions and discharge, the orientation or intake building, and to visits and correspondence.

[19]    The front entrance way is in a restricted area for inmates. The front door to the administration building is unlocked. Inmates generally use the rear entrance to the administration building for accessing the first floor or second floor of the administration building. Access to the second floor using this stairwell is controlled, by a door, locked on the stairwell side.

[20]    The ground floor of the administration building contains the offices of program staff, and inmates frequently report to the offices on the first floor of the building. The second floor of the building contains a hallway running the long axis of the building, with a stairwell at each end, with offices or rooms off either side of the hallway. The second floor contains the warden's offices, a boardroom in which parole hearings are held, washrooms, a photocopy room and, at the end of the hall, the finance office. The rear stairwell has a door, which is locked on the stairwell side, on the second floor.

[21]    The finance office is an open space set-up. The finance office has two entrances into the hallway, both of which are generally unlocked. There is a third entrance from the warden's office, which is locked on the finance side and open on the warden's side. The section of the finance office closest to the warden's office is the inmate accounts. The next portion of the office is the inmate pay area. Adjacent to the furthest entrance is a locked or secured door.

[22]    The grievors have been instructed that the doors into the finance office are to remain unlocked. There was a mechanical or electronic lock placed on the door approximately two or three years ago. This apparently failed due to a shifting of the building. It is unclear whether this instruction arises as a result of the lock failure or for the ease of convenience for other staff members to this office.

[23]    There is a panic button device in the finance office, which can be used to summon security.

[24]    Beyond the locked door at the end of the second floor is a landing, as well as an open stairwell. On the east wall of the landing is a LEXAN window with a view into the inmate pay area of the finance office. The LEXAN window has a section to speak through which is a metal mesh. At the bottom of the LEXAN window is a wooden slider for the passage of documents. I shall refer to this as the wicket or inmate pay wicket.

[25]    The inmates have access to the wicket by walking through a breeze way from the living units, classrooms, workshops, through an open air cage, into the administration building, and up the open staircase to the inmate pay wicket. The staircase, while contained within the building, is open from the landing on the second floor to the ground floor. The landing has a railing at approximately waist height. This means that an inmate could be pushed or jump from the landing outside the pay window to the ground floor - which would be a rather long fall.

[26]    The doorway between the inmate pay wicket and the hallway to the administrative section is locked. Some staff members, however, have keys. There is also a buzzer system which permits the pay section staff to buzz staff through the locked door. Staff members in the administration building have unrestricted access to the use of the door and stairway adjacent to the pay administration wicket. Frequently, staff members use the doorway, when inmates are present on the landing.

[27]    The inmate pay wicket, the stairwell and the landing are not protected by video cameras. The closest security person is stationed in the "bubble" approximately 300 metres away from the administration building. The pay wicket is not visible from the bubble. Inmates attending at the inmate pay wicket do not ordinarily pass by the security point at the bubble to come to the wicket.

[28]    During the submissions and cross-examination of the grievors, counsel for the employer referred to the LEXAN in the wicket as "unbreakable". In submissions, union counsel argued that any material is breakable.

[29]    Ms. Hodge testified to one incident where an inmate was agitated because his money was not in his canteen account. She tried to calm him down; however, this did not work. She told the inmate to leave. The inmate slammed his fist against the window, the window bowed, she phoned a correctional officer who arrived within a couple of minutes. She understands that the inmate was transferred to Max Edmonton, as "he had other issues".

[30]    There was anecdotal evidence before me that the LEXAN material in the "bubble" had been broken by inmates during a riot. There was no engineering evidence before me concerning the properties of the LEXAN in the wicket, and I cannot conclude that the degree of force ordinarily applied by an inmate's fist is the same as the degree of force in the riot, or that the materials have identical properties. The uncontradicted evidence, however, is that in the 6 years since the move into the medium portion of the facility, the wicket window has not been damaged, broken or destroyed by inmates reporting to make pay inquiries. On a balance of probabilities, I am satisfied that the LEXAN material affords a substantial protective barrier preventing direct contact between the inmates at the wicket and the financial specialists.

[31]    There is no evidence of any inmate coming, unescorted, from the landing through the door, into the hallway on the second floor. On a balance of probabilities, I find that the door is a barrier which protects the financial specialists from direct contact with inmates.

[32]    Having set out the physical setting, I wish to detail the work of the financial specialist and the dealings of the financial specialists with inmates at the Finance Office, in the administration building, and outside of the administration building while delivering cash to the minimum security unit, orienting inmates, participating in audits and lock-down recording, and other incidental contact.

Dealings with Inmates at the Finance Office

[33]    According to Ms. Fournier, the financial specialists implemented a rotation about two years ago, for reasons of coverage and holidays, and so that they could help each other out as it is a busy office. The financial specialists rotate every four months between the different "desks" of inmate pay, accounting and cashier. Everyone knows all the other jobs in the finance section. Ms. Sieben described the work at inmate accounting as having to deal with inmates on a daily basis, as inmates can transfer funds to their family to a maximum of $500 per year. The inmates are paid for the work that they perform and receive billings for their hobby supplies, and for the canteen.

[34]    Ms. Fournier described that she gets information about the inmates' work placement, any suspensions from work, and pay raises, based on a two-week pay period. Ms. Fournier explained that inmates are assessed for an increase in pay every three months, but the money that the inmates receive is minimal and, given the time required to make an assessment for pay, there is often a four-month back pay situation. She does the calculations and it is rolled in to the inmate accounting system. Information is transported to a computer program called the Equinox system for the canteen. There is a scanner at the canteen which is linked to the stores and computer in the pay administration section. Ms. Fournier described the system as a debit balancing system.

[35]    Ms. Sieben described the schedule over a two-week period. On the Monday, she posts inmate pay from the time sheets, and this posting takes until Wednesday. She said that she gets the orders in from "scudo", the hobby shop, and for donations to the Lifer's store, and bills for phone calls. These deductions are posted on Thursday or Friday of the first week. On Monday of the second week, deductions are made from the inmate's pay. On Tuesday, a maximum of $90.00 is put into the 'canteen account', and the balance is put into the inmate's current account. Ms. Sieben indicated that the canteen opens on Wednesday night, and on Thursday and Friday, inmates make inquiries why they did or didn't get "their money".

[36]    Every two weeks, inmates get a printout of their accounts, called an "inquiry", which shows what goes in and out of the account. Ms. Sieben said that:

The inmates have a lot of pressures with money. They have partners in custody that want money. A lot of times they are upset and abusive. They throw things at us. It is usually a very exhausting time, and we have to deal with pressure, the open stairway and grandstanding so you become frustrated and irritable so that they have control over you at some times.

[37]    Inmates come to the window, and the cashier asks what he wants. The inmate will state his case, and the financial specialist will get a printout and will dig out the invoices with signatures, if necessary. The financial specialist explains the documents to the inmate. Ms. Sieben says that the inmates become angry and don't want to hear what she tells them. Documents can be slid through the slot in the LEXAN window.

[38]    When inmates become angry, the financial specialist tries to calm them as much as possible. This is often difficult as the inmates are manipulative, aggressive and grandstand in front of other inmates at the landing. The financial specialist can direct an inmate to leave the landing and wait at the bottom of the stairs. The financial specialist can also call security for assistance. Ms. Campbell has never had a serious incident at the window and has never filed a written complaint or charged an inmate.

[39]    The evidence before me, particularly from Ms. Sieben, is that the heaviest traffic is after pay day, and it is all day long, for three days. Ms. Sieben indicated that one can often not predict the volume of traffic, as it depends on inmate anxiety and tension within the institution. Ms. Sieben testified that there were riots at the institution, although the precise date of the riots is not before me. Ms. Sieben indicated that before the riots there was more free movement, and that since the riots only two units are allowed free movement at a time.

[40]    The evidence before me indicates that the bulk of the inmate visits to the pay wicket occur during the lunch break, 12:30 to 1:30 p.m., when the inmates have free movement within the institution to unlocked areas, which include the inmate pay administration section. Ms. Sieben testified that the same inmate may approach the window three or four times, if the inmate does not like what he hears. Inmates, however, do approach the wicket on a continuous basis throughout the day, generally with a pass. Inmates who arrive without a pass are generally directed by the financial specialist to obtain a pass. Ms. Campbell indicated that a great percentage of the inmates come to the wicket between 12:30 and 1:30, but she does not remember any day on which the inmates were not trickling in and out all day.

[41]    Ms. Sieben indicated that 95 % of the time, the inmates come to the pay office window through the cage. She indicated that 5 % of the time, they come through the open doors to the administration building and that is "when things can happen". The evidence before me, however, has not revealed any significant confrontation arising after an inmate has come through the front door.

[42]    According to Ms. Campbell, 90 % of the inmates who come to the office come up through the caged area, from the north side of the control, and do not stop at control and are not required to report at control. The inmates would travel through the breeze way into the caged breeze way, into the administration building, up the stairwell to the landing near the window.

[43]    Ms. Campbell indicated that inmates occasionally come into the Finance Office on the accounts payable side if they have a grievance, to meet with the Chief of Finance. If the inmate is coming to discuss the grievance, the inmate is escorted by a correctional officer.

[44]    Ms. Campbell indicated that once the inmates leave the living units in the morning, they are going either to work, or to a program, and the movement is supposed to be monitored by the movement passes. However, sometimes security phones the financial section and asks if the inmate is there, if the inmate is not at work.

[45]    Ms. Fournier indicated that the guards in the main control do not always know where the inmates are, because they get phone calls from the shop, or the living unit, or the main control trying to ascertain the whereabouts of an inmate. Some of the inmates have free access to recreation or may be "hanging out" at the chapel.

[46]    Ms. Campbell indicated that part of the duties of the financial specialist is to aid security, to let guards know where the inmates are, to sign the passes, and to report to security. She sees herself as an officer of the organization and believes that an important part of the mission statement is to "give a safe environment".

[47]    Ms. Sieben testified that on the day prior to the hearing, she had 11 inmates at the window before 10:00 am. She said that she can see 25 to 30 per day, and on some days 5. Ms. Sieben said that inmate traffic depends on the date, and "population unrest", and that lately there seems to be a lot of unrest. Ms. Fournier indicated that on a week that is not busy, an average of 5 or 6 inmates come to the window. In cross-examination, Ms. Fournier stated that this was "outside of the "12:30 to 1:30 pm" time period". Ms. Fournier indicated:

  We try to answer their questions as quickly as possible, so they don't hang around. We try to get them out in a 10 minute period.

[48]    Ms. Fournier testified that on a busy day, the platform on the stairwell outside the wicket is packed with inmates.

[49]    Sometimes inmates come for their release money and are always accompanied by a correctional officer. The process followed is for the financial specialist to count the money in the presence of the inmate, put the money into an envelope, and pass the envelope through the window slot to the inmate, who would seal the envelope, sign, and pass back the envelope to the financial specialist, who then gives the envelope to the officer, who carries it to the main control where it locked overnight until the inmate goes on his release or temporary absence.

[50]    The financial specialists have some contact with the inmate cleaner that cleans the administration building, including the Finance Office. The inmate cleaners are supervised by the warden's secretary; however, the warden's secretary does not escort, remain in the presence of, or closely monitor the behaviour of the inmate cleaner, while the cleaner performs cleaning duties in the administration building.

[51]    On one occasion, just prior to the hearing, a guard brought inmates from the minimum security unit and left the inmates in the Finance Office, as the guard did not want these inmates to mix with inmates at the wicket. Ms. Fournier recalled an incident where an inmate walked from the administration building and opened the door into the Finance Office. Ms. Fournier said:

it was a shock, we all froze. He was a new inmate, I talked him through and walked him back. It throws you into a panic mode.

Contact with Inmates in the Administration Building

[52]    Occasionally, inmates are found to be "wandering" on the second floor of the administration building or wander into the Finance Office. When inmates are found to be in the administration building or Finance Office, they are generally directed to leave, and sometimes they are escorted out of the building. Generally, this occurs on an infrequent basis, primarily by "new inmates" on their way to visits and correspondence, who are lost.

Delivery of Cash to Minimum Security Unit

[53]    The pay administration staff members also deliver cash to the minimum security portion of the institution. The pay administration staff members carry the money, generally in a canvas bag, from the administration building, through the front door, and across the grounds, through the main gate of the penitentiary, across the parking lot, and up the stairs to the offices in the minimum security building. The financial specialist deals with the inmates, from behind a half door. In the presence of a correctional officer, the financial specialist counts money, places it into an envelope, has the inmate seal and sign the envelope, and the envelope is then passed back to the financial specialist, who passes the envelope to a correctional officer, for later dispensation to the inmate who is going on a form of release.

[54]    The evidence before me indicates that inmates are aware of the schedule of deliveries and refer to the financial specialist as the "money lady", and minimum security inmates often follow the financial specialist to the minimum security building. The financial specialists would prefer to have an escort when travelling to the minimum security portion of the facility, when carrying money, but the institution appears to be unprepared to provide an escort.

[55]    Ms. Wescott has sometimes carried up to $3000 in a cash delivery to the minimum security unit. Ms. Wescott has had a couple of incidents with inmates. Ms. Wescott says that the pass system has cut down on the traffic from inmates. Ms. Wescott views the P.F.A. as compensation for exposure to inmates. She does not understand why the same amount is paid for the P.F.A., when they have more exposure to inmates now than they did when "they worked outside the fence".

Other Contact with Inmates Outside the Administration Building - Lock-down and Inventories

[56]    The financial specialists also participate in work outside the administration building during "lock-down". This is a time period when all inmates are locked at their cells. The financial specialist tours the living units with a correctional officer. The financial specialist does "clerk recording" of items which are taken from the cells by the correctional officer. This is done in the presence of the inmate. Ms. Sieben said that she feels that it is a volatile situation when recording during the lock-down. The inmates may have been locked down for two to three days, and they are angry, and they know that staff members are taking away things that do not belong to the inmates, and things that are not on their hobby or scudo card. Ms. Sieben indicates that three times in the last year and a half, she has been left alone with an inmate during a lock-down, and she feels that when she is left alone, she has "custody" of the inmate.

[57]    Ms. Campbell has participated in recording property during lock-down and cell searches. She has also done audits in the central canteen with two store people and an offender. Ms. Wescott has done this work and has always been escorted by a correctional officer.

Orientation Sessions

[58]    Some of the financial specialists, including Ms. Fournier, are involved with orientation sessions with new inmates, at the intake building. The presentation by the financial specialist is one of a number of presentations made to new inmates. There are usually 5 to 8 inmates at the time of the orientation session. This involves sitting in a room with tables, explaining the system in finance to the inmates, including the two-week pay period, holds, deductions, level of pay. Each session lasts approximately 15 minutes. The financial specialists rotate through this work. There are secretaries and a correctional officer located in the intake building, working in an office area immediately adjacent to the meeting room where the orientation takes place. There is a large window between the office area and the meeting room area.

[59]    Approximately every two weeks, Ms. Fournier takes the printouts down to the units. Ms. Fournier would not pass the central control point while taking these printouts to the unit.

[60]    In summary, most of the contact between inmates and the financial specialist occurs at the wicket. There is a lesser degree of contact in the administration building and outside the administration building while carrying cash, participating in orientation, and participating in lock-down or audits, or delivering pack documents to the units.

Harassing Conduct from Inmates

[61]    It is apparent also from the evidence before me that the financial specialists receive verbal harassment from inmates on a frequent basis. The frequency of harassment appears to relate to the pressure on inmates (from other inmates), and the "tone" of conflict, or unrest, within the institution. Much was made at the hearing, by counsel for the employer, that the financial specialists have the ability to report or charge an inmate, and that there is no documentary evidence that the financial specialists are subject to continual harassment by the inmates. It is apparent that the financial specialists have not been filing incident reports concerning situations with the inmates. As Ms. Sieben indicated:

I have a busy job. If I reported every incident, CSC would be unhappy with me not doing my job.

[62]    Ms. Wescott sits on the side of the office furthest away from the wicket and closest to the warden's office. She has never had an incident personally at the window. She can "hear the hollering" and indicates that the financial specialists are sworn at constantly by inmates.

[63]    It is apparent that Ms. Sieben feels that she is working in an unsafe environment, whether she is working at the pay window or generally in the office. She is concerned that the doors to the administration building are unlocked and that doors into the pay administration section are unlocked. Ms. Sieben indicates that the financial specialists have been instructed to leave the doors to the pay administration section open by their supervisor. Ms. Sieben indicated that she followed the directions of the employer at the workplace; she is concerned, but it is not for her to lock the door.

[64]    There was one incident where a financial specialist, no longer an employee, had her hands rubbed by an inmate, who reached through the open pass-through slot at the wicket. This was prior to the installation of the wooden slider.

[65]    I accept that Correctional Service Canada has policies related to a harassment-free workplace. I accept also that there are Commissioner's Directives which deal with inmate harassment of staff. I accept that staff members do have the ability to charge inmates with offences, which can be dealt with under the administrative provisions of the Corrections and Conditional Release Act, R.S.C. 1992 c. c-20 or the Regulations thereunder. There is no reason, however, to discount the evidence of the employees that they are subject to harassment from inmates. There was a consistent theme in the evidence before me that the grievors reported fears for their safety and inmate harassment to the supervisor; however, the grievors have never charged an inmate or prepared written incident reports. The supervisor was not called as a witness by any party to this proceeding. I am not surprised that the financial specialists, who have busy and stressful jobs, would not fill out written forms.

[66]    Further, some changes have been made to the inmate pay area, at the request of the employees. These changes involve a re-arrangement of the furniture so that all the financial specialists can view the wicket and the landing outside the wicket area. A wooden pass- through slot was installed to replace the open pass-through. A mirror was installed to give the financial specialists a view down the stairwell towards the ground-floor entrance.

[67]    I accept the evidence of the grievors as credible, applying the principles in Faryna v. Chorney, [1952] 2 D.L.R. 354 (C.A.). The financial specialists appear to have legitimate concerns regarding their safety during time periods when they travel with money and when staff members use the door near the pay area, while inmates are present on the landing. The landing area may have some potential for inmates to cause injury, to themselves or others, because of the open stairwell and the lack of video camera monitoring.

[68]    It is apparent that some of the safety issues have been addressed by management, through a re-arrangement of the furniture in the office, provision of a panic button, the installation of the wooden slide window, and the installation of mirrors. There may be other safety matters for the parties to discuss; however, the grievors' evidence was largely unchallenged, and they appear to be sincere in the safety concerns that they raised in the context of this P.F.A. grievance.

[69]    The financial specialists see the P.F.A. as a form of danger pay, as compensation for hazardous or dangerous work. Ms. Campbell indicated that she views the P.F.A. as:

extra pay requiring us to keep the area safe and self safe, and that we are at risk and responsible for letting staff and security know when some things are not right

[70]    Ms. Fournier indicates that she saw the P.F.A. as pay for additional responsibilities such as when the inmate cleaner is in the office; with no security guard present or the "lady in charge" not there, it is an extra duty on her part to see that he is not in the vault area or the cash drawer. Ms. Fournier indicated that she believes that she has custody of the inmate, when he is in her area and no one else is around. Ms. Fournier indicated that if there is an incident on the landing outside the window, she is the one who is assessing the situation, giving commands or directions to the inmate, and phoning for security.

[71]    The financial specialists believe that they have custody over an inmate appearing in front of them at the window, because there is generally no correctional officer present. The financial specialist views the pass and signs the inmate's pass as a responsible person - either as officer or interviewer. The financial specialist sends an inmate back to a place for proper authorization of the movement, if the inmate does not have a pass. Ms. Sieben indicated that she felt that she had "custody" over every person who comes with the pass, and every person who is at the window, asking questions. She feels that one indicator of custody is the fact that the financial specialists often receive phone calls from the unit inquiring as to the whereabouts of inmates.

[72]    The bargaining agent called Jim Taylor as a witness. He has worked for CSC for 23.5 years. He has held a variety of positions with CSC including living unit officer, living unit supervisor and recreation supervisor, and has acted as coordinator of correctional operations. He is currently a security maintenance officer and has been so for about 5.5 years. He is in charge of all keys, locks, weapons, and security equipment. Mr. Taylor explained the difference between static and dynamic security. Static security consists of the permanent physical fixtures, barriers, locks and all equipment necessary to the security function. Dynamic security consists of the people who make the observations. All staff members within the institution, including the financial specialists, are part of an institution's dynamic security.

[73]    Drumheller Institution has a pass system to control inmate movements from area to area. The control passes are signed and dated by the officer sending an inmate to an area, and the person who receives an inmate signs and dates the pass before sending the inmate back. Where the inmate has a scheduled appointment, for example at the Finance Office, the pass is filled out the day before and sent to the security office for approval and then is sent to the offender. The passes are colour coded. After a financial specialist has dealt with an inmate who visits, with a pass, the financial specialist signs the pass as the officer, sending the inmate back to the area from which the inmate travelled. Mr. Taylor advised that there are no cameras covering the caged breeze way to the Finance Office. It is Mr. Taylor's view that the financial specialist manning the window has temporary custody of an inmate if there is no other correctional officer present.

[74]    Mr. Taylor testified that the inmates do not require passes during the 12:30 to 1:30 p.m. period of free movement. Mr. Taylor also testified that he would hope that most inmates use the caged breeze way route to the Finance Office. He indicated that movement to the visit and correspondence area is constant, but that inmates are restricted in moving to this area, and should have a pass to go into the "business area", which I take to mean the main entrance of the administration building. He indicated that, in large part, the inmates are restricted and follow the rules of the organization; he is not able to answer what percentage of time inmates would use the caged breeze way route or front entrance route to the Finance Office.

[75]    The employer called one witness, Bob Lytle, who recently retired from his position at Drumheller Institution as the Assistant Warden, Management Services. Mr. Lytle was the third person in charge at Drumheller Institution and had responsibility for human resources, material management, finance, informatics, administration, food services, works and engineering. He reported directly to the warden at Drumheller. He had indirect supervision of the grievors for 12 years, prior to his retirement.

[76]    When the financial specialists were moved from the Human Resources Building (A1), to the current workplace within the perimeter, Mr. Lytle conducted a review of the P.F.A. for the financial specialists. Mr. Lytle considered that the financial specialists had no custodial responsibility for inmates. He defined custody as "having direct contact with inmates and giving him direction or holding him in a specific area". Mr. Lytle's view was that when a financial specialist dealt with an inmate at the wicket, through the barrier, the financial specialist did not have custody of the inmate. Custody requires direct contact with the inmate, without barriers. The door is always locked on the inmate side, and there is a LEXAN barrier with a "speak-through", and as well as a pass-through slot.

[77]    Mr. Lytle indicated that CSC has no tolerance for harassing behaviour in dealings between inmates and staff. He testified that there are directives within the CSC, and within the Government of Canada, dealing with harassment, and that the CSC takes harassment complaints seriously. He indicated that if an inmate carries on and attempts to assault a staff member by throwing objects, he would expect the supervisor to be notified, a report to be written and the inmate charged with an internal disciplinary offence under the Corrections and Conditional Release Act, R.S.C. 1992 C.- c-20 and Regulations. He indicated that all staff members have received information about harassing behaviour and "our intolerance" for it.

[78]    Mr. Lytle indicated that the front door of the administration building was considered "restricted" for inmates. Mr. Lytle was aware that an electric lock was placed on a door in the Finance Office, and that the lock was de-activated or was not being currently used. Mr. Lytle indicated that if staff members are fearful of the inmates or of inmate conduct, management would like to know about it. He indicated that foul language is often used by inmates in a penitentiary setting as a way of expression. If the language was ongoing or unwarranted he would "expect staff to write it up, and some staff had".

Arguments

For the Grievors

[79]    The bargaining agent says that the P.F.A. is in the nature of danger pay. The bargaining agent says that financial specialists are part of the dynamic security of the institution. Financial specialists take custody of an inmate, when they deal with an inmate through the wicket. Financial specialists sign an inmate's pass. Financial specialists respond to "situations" involving inmates by giving verbal commands, including commands to calm an inmate, for an inmate to cease disruptive behaviour, and for an inmate to leave the pay area. Financial specialists report disturbances to security.

[80]    The union says that "custody":

... must be given its normal definition which includes the concept of control. While it is true that the corrections officers (CXs) have general custody of inmates within the institution, specific custody is temporary (sic) transferred to other staff either by virtue of their position as the person in charge of a classroom in the school or hobby shop OR by virtue of the inmate being given a pass to go to another area. At the time that the person is in the other area, they are no longer in the custody of the original person but that custody temporarily transfers to the person that the inmate is being sent to see. ...

[81]    The bargaining agent asks that I fashion a remedy back to the date that the financial specialists moved from outside to inside the perimeter of the medium security institution. Alternatively, the bargaining agent asks that I fashion a remedy for the period of 25 days prior to the filing of the grievance. Further, the bargaining agent requests that I retain jurisdiction over the implementation of the award.

For the Employer

[82]    The employer says that the grievors are properly paid at the medium limited rate and that the grievances should be denied. The employer says that all employees working in an institution face some degree of danger from inmates. The employer says that the focus of section 59.02 of the collective agreement is on the custody of the inmate and the exposure to danger. The employer says that the physical barrier between the inmate and the financial specialist, consisting of a LEXAN wicket and a locked door, means that the financial specialist at the wicket and in the pay administration office does not have custody of an inmate. Further, the employer says that most of the inmate traffic occurs during the lunch period (12:30 to 1:30 p.m.) when inmates are not required to have a pass to report to the inmate pay office.

[83]    The employer says that any incidental encounter between the inmate and the financial specialist, either inside the building or outside the building within the perimeter fence, or en route or in the minimum security portion of the penitentiary is not custody, and therefore entitlement to the P.F.A. is not triggered. The employer says that the only time the grievors have "custody" of an inmate is when there is face-to-face contact with an inmate, in the "orientation session". The employer submits that the grievors are properly paid at the medium limited level.

[84]    In the alternative, the employer says that relief should be limited to a period of 25 days prior to the filing of the grievance: Guaiani and Treasury Board (Department of National Defence), PSSRB File No. 166-2-21358(1992)(QL), Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.).

Reply by the Grievors

[85]    The bargaining agent says that this is an issue of interpretation of the collective agreement, particularly clause 59.02. The "barrier or lack of it" is not essential to determine custody. If this were so, then a correctional officer, at a control point, but beyond a LEXAN barrier, would not have custody of an inmate. What is important is that the employee control or exercise control over the inmate. The financial specialists are part of the dynamic security of Drumheller Institution. In Cahill and Treasury Board (Solicitor General Corrections Services), PSSRB No. 166-2-25253 (1994) (QL), where there was a change in the work environment, the rationale for the P.F.A. at the frequent, rather than continual level was the amount of contact with inmates.

Reasons for Decision

[86]    In coming to my decision, I have reviewed the oral testimony, exhibits, arguments of the parties and the following authorities supplied by the bargaining agent:

Racicot and Treasury Board, PSSRB File No. 166-2-17294 (1998)(QL); Cahill and Treasury Board (Solicitor General Corrections Services), PSSRB File No. 166-2-25253 (1994) (QL); Extracts from the electronic version of Brown & Beatty, Canadian Labour Arbitration, Toronto: Canada Law Book, 2004, 3d, 3:5110 to 3:5120 and 4:2100 to 4:2250.

and the following authorities supplied by the employer:

Guaiani and Treasury Board (Department of National Defence), PSSRB File No. 166-2-21358 (1992) (QL); Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.); and Cahill and Treasury Board (Solicitor General-Correctional Service), PSSRB File No. 166-2-25253 (1994) (QL).

[87]    My site visit with the parties was very helpful in terms of understanding the testimony and arguments presented after the site visit.

[88]    The salient portion of the Program and Administrative Services Collective Agreement between the Treasury Board and the Public Service Alliance of Canada (the collective agreement) reads as follows:

59.01  A Penological Factor Allowance shall be payable to incumbents in some positions in the bargaining unit which are in Correctional Service Canada, subject to the following conditions.

59.02  The Penological Factor Allowance is used to provide additional compensation to an incumbent of a position who, by reason of duties performed in a penitentiary, as defined in the Corrections and Conditional Release Act as amended from time to time, assumes additional responsibilities for the custody of inmates other than those exercised by the Correctional Group, and is exposed to immediate hazards of physical injury by reason of assault and other disagreeable conditions.

59.03  The factor recognizes the differences between maximum, medium and minimum security penal institutions, as designated by the Employer, and distinguishes between continual, frequent and limited degrees of exposure, as follows:

Continual - means fulfillment of the conditions described in clause 59.02 above throughout the working day and recurring daily.

Frequent - means fulfillment of the conditions described in clause 59.02 above for part of parts of the working day and generally recurring daily.

Limited - means fulfillment of the conditions described in clause 59.02 above on an occasional basis.

[89]    The collective agreement then sets out a scheme for the P.F.A. where the amount is determined by reference to the security level of the institution and the degree of exposure. Assuming that an employee works in a penitentiary, the two important qualifications for receiving the P.F.A. are:

(a) assuming additional responsibilities for the custody of inmates other than those exercised by the Correctional Group, and

(b) exposure to immediate hazards of physical injury by reason of assault and other disagreeable conditions.

[90]    The issue in this grievance is whether the grievors have shown an entitlement to the P.F.A. at the frequent rather than the limited level for a medium security institution, based on the qualifications set out in the collective agreement. There was no evidence in this case tendered by the employer explaining what portions of the job of the financial specialist attract the P.F.A. for exposure at the medium limited level. Limited means "occasional". In argument, it was suggested by the employer's counsel that the limited exposure was due to exposure of the financial specialists to the inmates during the orientation session. Argument, however, is not evidence.

[91]    It is clear from the evidence that the financial specialists have recurrent daily contact with inmates, for part or parts of the working day. This is generally over the lunch period, but occurs throughout the day, and is particularly heavy for the 2 or 3 days following pay day. The inmates go to the Finance Office, with and without passes. The primary contact is at the wicket in the inmate pay area. There is a lesser amount of contact in the yard, in the breeze way, or on the way to the minimum security unit, chance encounters on the 2nd floor of the administration building when an inmate wanders in, or with the inmate cleaner, or on occasion when a correctional officer leaves an inmate or inmates in the waiting area of the pay administration office. There is some limited contact on dates when new inmates are oriented to the pay system in the intake building.

[92]    The P.F.A. compensates the employee for a varying degree of exposure to hazards arising as a result of assuming additional responsibilities for the custody of inmates.

[93]    I was not provided with any case authority which defined the word "custody". The term is not defined in the collective agreement. Does custody require a potential for physical contact, the physical power to restrain the individual, or does it rest merely in the power to issue commands, or orders from behind a barrier? I note that in Cahill (supra) and in Racicot (supra) the Board did not develop a comprehensive definition of custody. Such an interpretation was unnecessary, given that Cahill and Racicot were case management officers, and by the nature of their duties had individual contact with inmates, in situations where there were no physical barriers, and in the absence of a correctional officer.

[94]    It is helpful to look at the duties of the financial specialist, and exposure to inmates. There are a number of duties performed by the financial specialist, where the specialist has some degree of interaction with an inmate:

(a) while working in the office, dealing with an inmate from behind the protective barrier;

(b) contact with an inmate who wanders into the administration office or administration building and is encountered in the administration building;

(c) contact within the perimeter of the fence, or in the breeze way but outside the administration building;

(d) contact in the minimum security unit, or while walking to the minimum security unit;

(e) contact with inmates during audits, inventories, or while recording during lock-downs.

[95]    A basic issue is whether a financial specialist can be said to have custody of an inmate while working behind a protective barrier. This appears to be the greatest portion of the "contact content" between the specialist and the inmate. According to the estimates of the financial specialists, the majority (90 % or more), of the contact is at the pay wicket.

[96]    It is apparent that sometimes the financial specialists are dealing, at the window, with inmates who arrive with their movements controlled by a pass and, after dealing with the inmate, the financial specialist signs the pass as the officer, which has the effect of authorizing the inmate to return to the place from which he came. On most occasions, however, the financial specialists are dealing with inmates who have free movement during the lunch break.

[97]    On all occasions when the financial specialists interact with an inmate, they are part of the dynamic security of the penitentiary and can attempt to reduce conflict by issuing directions or commands to the inmate. In that sense, there is some degree of control over the inmate; however, the financial specialist has no power to enforce commands, other than calling for security backup. The financial specialist is, in this respect, no different from any other staff member who is untrained in the use of force.

[98]    Use of force does not appear to be a prerequisite for custody. There are a number of Board cases involving truck drivers, area supervisors, parole officers, and case workers, who are apparently dealing with inmates on an unarmed basis, and yet are entitled to the P.F.A. on a continual basis.

[99]    I note that in Cahill (supra), a case management officer who spent 15 to 20 % of his work day writing reports was considered to have contact at the frequent level, and not at the continual level. In Racicot (supra), case workers who had exposure to inmates in a trailer and in the cell blocks were considered to have exposure at the continual level, as opposed to the frequent level. This decision did not deal with the issue of inmates and a protective screen. Instead, the case dealt with case workers in a trailer, situated within the grounds of a penitentiary, responsible for meeting with individual inmates or groups of inmates. In Racicot (supra), the grievors had substantial exposure to inmates, and the interviews took place in the trailer, the cells, an interview room, an office, or any room which was vacant. Significant in Racicot (supra), was the fact that the inmates had free access to the trailer, and the only protection was a wooden door, which could be easily broken, and which had to be opened before the grievor could deal with the inmate. I also note that in Racicot (supra), the bargaining agent conceded that if the only contact had been in the administration building, only a frequent allowance would be allowed as "control is exercised over persons entering this building" (page 13).

[100]    In Cahill (supra), the Board dealt with a case management officer who claimed an entitlement to the P.F.A. at the continual rather than the frequent level. The Board found that Cahill spent most of his time working or "pushing paper" in his office, which was behind a protective barrier consisting of locked door and with a correctional officer present at or near the protective barrier. The Board found that he would have custody of inmates when the inmates were in his office, or when escorting inmates to and from his office.

[101]    I note that the Board's decisions in Cahill (supra) and Racicot (supra) do not contain any comprehensive definition of custody. The facts in these cases are substantially different than from those in the present case. In Cahill (supra) and Racicot (supra), the case management officer generally dealt with the inmate on a one-on-one situation, in the absence of physical barriers. What is important to each decision, however, is exposure to an inmate. In Cahill (supra) and Racicot (supra), the exposure was without protective barriers between the inmate and the employee, and in the absence of any other person who was controlling the movements of the inmate.

[102]    In this case, I am asked to interpret the meaning of custody, as set out in the collective agreement. In my view, custody involves, at the very least, control over the inmate, in the absence of a correctional officer, through the issuing of commands, and exposure to the risk of harm or contact arising as a result of the exercise of authority over the inmate. If I apply this definition, anyone who has command authority over an inmate, in the absence of a correctional officer, would have custody over the inmate. Anyone who assumes command authority and exercises that authority incurs some level of risk of harm from an inmate. The P.F.A. is intended to compensate the employee for the exercise of custody, as the exercise of custody involves risk to the individual exercising custody.

[103]    The job of a financial specialist is primarily to deal with an accounting function, and part of that function involves inmates. Some of this work involves face-to-face transactions with the inmate at the wicket. The P.F.A. is intended to provide a measure of additional compensation to those employees who have custody of inmates and, through the custody of the inmate, have exposure to a risk of danger from the inmate. The majority of contact that the financial specialist has with inmates in the medium portion of the institution is through the physical barrier at the wicket. This is recurrent and daily contact, but it is not custody, in a physical sense, since there is a barrier.

[104]    In their dealings at the wicket with an inmate, the financial specialists do not have command authority over an inmate, who has come, more or less voluntarily to make an inquiry. An inmate is free to leave and cease dealing with the financial specialist. The financial specialist has no control over the inmate at the wicket. The financial specialist cannot be considered to be "detaining" or "holding" the inmate during the financial transaction at the wicket.

[105]    In my view, the situation of an inmate coming to the wicket with a pass is no different. The pass is an authority issued by a correctional officer, given to an inmate to authorize the inmate to move to an area. The pass is issued, at the request of an inmate, to facilitate a "voluntary attendance" at the Finance Office or wicket. The pass, permitting the inmate to travel to the Finance Office for an appointment, does not operate to transfer the custody of an inmate from a correctional officer to the financial specialist. The pass controls and provides an authority for inmate movement, which is controlled on behalf of the institution by the correctional officer issuing the pass. In examining the pass, the financial specialist can determine whether the inmate's movement is authorized by a correctional officer. In essence, whether the inmate appears with or without a pass, the inmate is voluntarily at the wicket for the purpose of making an inquiry. The financial specialist does not detain or hold the inmate at the wicket during the course of the transaction at the wicket.

[106]    Dealing with inmates through the LEXAN barrier does not expose the financial specialist to any special risk arising out of the exercise of control. Dealings at the wicket would not constitute an immediate hazard to a grievor. In my view, the grievors have not established that they have custody of an inmate during transactions at the wicket, or that the dealings at the wicket constitute an immediate hazard to the grievors.

[107]    Certain portions of the duties of the financial specialist involve custody of inmates. For example, when a financial specialist has the charge of orientation of inmates, in the absence of a correctional officer or other facilitator, the specialist has custody of the inmates. The evidence in this case shows that the orientation of the inmate is in the nature of a "captive audience meeting". The inmates do not attend voluntarily but are compelled to attend by the institution. This is no different from the situation where the inmate works in a shop, or attends a class for instruction, and the instructor or supervisor has control over the inmate. When a financial specialist escorts a lost inmate out of the administration building, this also can be said to be custody, as the financial specialist is controlling the movements of the individual and placing herself or himself at risk by doing so. It is clear from the evidence before me that this is not exposure of a continual or daily recurrent nature. The financial specialists are properly paid at the medium limited P.F.A. rate for this type of exposure.

[108]    Certain of the duties of the financial specialist involve exposure to inmates, without custody or control of inmates. Examples of these duties are participation of the specialist in audits, or lock-down recording. Generally, a correctional officer would be present during lock-down recording and would have custody of the inmate. During an audit situation, the employee with the duty to manage the worksite (e.g. kitchen or canteen) would be the person having custody or supervision of inmates who were present and were assisting in the audit.

[109]    Incidental contact with an inmate outside of the office, while the financial specialist travels with money to the minimum security portion of the facility, or with pay documents to the living units, cannot be said to involve custody. The task of the specialist is to have custody of money or documents and deliver the documents or money. She is not tasked with custody or control of an inmate while carrying money or documents; however, she has exposure to inmates.

[110]    When the inmate cleaner is in the office, it is clear that there is exposure of the inmate to the financial specialists. The warden's secretary is the person who is in charge of the inmate cleaner and is the person who directs his work. A financial specialist may have added responsibilities at this point to safeguard money from the inmate cleaner. This is, however, a responsibility which would have existed prior to the move into the medium portion of the institution, and the evidence is unclear whether the same cleaning arrangements were in existence prior to the move.

[111]    It could be said that any person working in a penitentiary setting has exposure to contact with inmates and is thus exposed to a hazard or potentially dangerous working conditions. It is apparent from the wording of clause 59.02 of the collective agreement that both elements of custody and exposure to risk of injury must be present in order to attract payment of the P.F.A. In viewing all the elements of the job of a financial specialist, I am not satisfied that the elements of custody and exposure to risk are present at a level which is "for part or parts of the working day and generally recurring daily". It is clear that there is often exposure to inmates, but at a time when the specialist does not have custody of an inmate.

[112]    For all these reasons, the grievances are denied.

[113]    I note that the financial specialists have expressed concerns about safety and harassment by inmates. The dismissal of this grievance should not be taken as a dismissal of the concerns expressed regarding safety and harassment. CSC has Commissioner's Directives, and there is a harassment policy in place. Unless a financial specialist prepares a harassment complaint or charges an inmate with an offence, there seems little that the institution can do to remedy harassing conduct by inmates.

[114]    The financial specialists have also raised issues related to workplace safety. In response to concerns raised, there have been changes in the workplace. I note that there has been re-arrangement of the furniture in the inmate pay area, to ensure that all staff persons have a view of the wicket. There is a panic button device for contacting security. There is a mirror system installed. The pass-through area in the LEXAN window has been enclosed by a wooden slider. The parties have had discussions, and changes have been implemented in the workplace since the filing of this grievance.

[115]    From the site visit, it is apparent to me that the wooden slider, constructed of fairly thin wood, could be broken by an inmate, or alternatively the hands of a financial specialist could be grabbed by the inmate while the slot is open. Inmates can control the opening and closing of the slot, and there was evidence before me that inmates do open the slot. There apparently has not been a physical injury at the wicket since the wooden slider was installed.

[116]    In my view, there are further changes which could be made at the workplace, which could provide a greater feeling of safety for the financial specialists. I note that I have viewed a device, in the past, consisting of a rotating tray or dish, which is installed at payment wickets in some train or subway stations, to facilitate the transfer of cash, tickets and documents without any risk of physical contact. A device of this type would render the wicket more secure and eliminate the risk of hand contact at the window. It was also apparent that protocols could be developed concerning the use of the door by the wicket by a staff person while inmates were present on the landing or for escorts while the financial specialist is travelling with money.

[117]    These are, however, issues which fall outside of the claim for the P.F.A., which I commend to the parties for further discussion.

Paul Love,
Board Member

Dated August 11, 2004.