Archived - Decision 05-036 Canada Labour Code Part II Occupational Health and Safety

This appeal made pursuant to subsection 146(1) of the Canada Labour Code was decided by Katia Néron, Appeals Officer.

[1] This case concerns an appeal that Jim Wladyka, the representative of Correctional Service of Canada, made on July 22, 2004, under subsection 146(1) of the Canada Labour Code, Part II (the Code), against a direction issued by health and safety officer (HSO) Kim Beattie on June 22, 2005, at the Edmonton Institution, Edmonton, Alberta.

[2] According to HSO Beattie's investigation report, on June 9, 2005, Clint Pickering and Richard Unrau, two correctional officers 1 (CX 1's), refused to work at the gymnasium and associated rooms in the gymnasium recreation area and outdoor recreation yard located in and on site at the Edmonton Institution. At the time, C. Pickering and R. Unrau were asked to perform their duties and responsibilities as CX 1's in the gymnasium and recreation courtyard of the institution without having two armed correctional officers posted in the gymnasium catwalks.

[3] C. Pickering and R. Unrau refused to work because they believed that having only one armed gymnasium catwalk officer in position during all major inmate gymnasium and recreation yard movement created an excessively unsafe work environment with a level of risk which was way above the normal inherent risk for Correctional Officers and constituted, to their opinion, a danger for their safety because:

• in the past, the level of gang activity and the incompatibility of the gang members forced management to position a second armed catwalk officer in the gymnasium recreation yard;
• during inmate recreation times, only one correctional officer in the catwalk post could not safely and effectively provide adequate visual and rifle coverage for the two CX 1's as they moved throughout these areas for various job functions and duties;
• the firing positions available to a single catwalk officer, and the visual line of sight, were greatly compromised because of the layout of the catwalk structure and the design of the viewing window/gun ports that were available to view and fire out of;
• by requiring excessive movement by the single officer to navigate the gymnasium catwalk area to try and properly observe the gymnasium/recreation officers who were required to perform hourly recreation yard patrols and bi-hourly gymnasium patrols, it was impossible to provide the same level of visual coverage and riffle coverage that is achieved with two catwalk officers;
• with one officer in the catwalk, he or she could be located in a position (i.e. viewing window/gun port) that would not give a complete view of the gymnasium and, therefore, an event could occur that the officer could not see, and subsequently not be able to respond immediately with a rifle if the circumstances warranted it;
• if the single officer in the catwalk happened to be in a viewing window/gun port and did see an incident, he or she would not be able to respond immediately with a weapon because the viewing window/gun port he or she is at, would not allow shooting/rifle coverage of the area due to the physical restrictions of that particular gun port. By forcing the one officer to reposition him or herself in the catwalk so as to get a more favorable position to respond with a weapon, the officers on the floor and the inmates would not be viewed/covered by any officer with a gun and the officer moving would not have visual contact into the gymnasium and would not know what is or has transpired during the time of movement;
• the gymnasium catwalk officer would also now have to move through 3 closed doors in the gymnasium catwalk depending on the position that the officer was intending to move to so as to observe and take appropriate action with a firearm if the circumstances warranted it. The time taken to reposition was unacceptable from a risk perspective when taking into consideration the fact that the number of inmates can be as high as 84 in the gymnasium/recreation area and could potentially be as high as 100 if certain cell ranges are filled to maximum capacity;
• in having just one catwalk officer, the recreation yard, the gymnasium office, inmate offices, inmate shower and toilet area, inmate weight pit and the gymnasium itself, were unmonitored by any officer from the catwalk and this meant there was no one in the catwalk to immediately respond to an incident in one or more of these areas should something arise;
• even though the gymnasium and recreation yard are in the view of remote video camera monitoring, each single officer posted in Control Post 2 and the Master Communication Control Post (M.C.C.P.) where the remote camera video images are located, could be performing other duties at the same time that an emergency occurs and therefore, could not observe an emergency response or could even miss an event all together;
• considering the fact that the inmates could learn very quickly that the gymnasium catwalks were staffed with only one correctional officer, this realization by the inmate population would give the inmates greater opportunity to assault inmates and staff;
• in having one officer in the catwalk, should an emergency arise in the recreation yard, it was to dangerous for the two gymnasium officers (CX 1's) to respond to the incident because the single gymnasium catwalk officer could not offer proper armed coverage for the gymnasium and the recreation yard at the same time;

[4] Essentially the employer believed that one (1) catwalk officer could cover the post safely with an acceptable risk because:

• the catwalk officer could move around and cover the officers on the floor;
• the Threat Risk Assessment done by the Correctional Supervisor had looked at the risk level and found that there was no increased risk which would warrant a danger to employees on the floor;
• the gymnasium and the recreation yard had coverage by sixteen (16) video cameras therefore the reduction of a correctional officer in the catwalk was mitigated by the number of cameras observing these areas;
• a double barrier which was controlled by Control Post #2 (armed post) located immediately outside the gymnasium, provided access to the gymnasium;
• mobile patrol vehicles which are also armed posts, provided intermittent supervision of the recreation yard area;
• observation of the recreation yard was assisted by one (1) tower officer positioned at either the north east or north west corner tower (Tower 3 or 4) but normally at Tower 3 in the north east corner and the visual coverage for this officer (an armed post) was unrestricted for the outside recreation yard area;
• the corrections floor officers wore Personal Portable Alarms (PPA) at all times while supervising the inmates which could be activated and would trigger an emergency response;
• the correctional officers had a means of escape from the gymnasium corrections office via a locked door at the back east wall and the route was fenced off once outside;
• the gymnasium corrections office had large windows which allowed a view of the gymnasium, inmate washroom, inmate shower and weight pit area.

[6] Following the employer's unsuccessful effort to resolve the matter, HSO Beattie investigated on June 10, 13 and 16, 2005, into C. Pickering and R. Unrau's continued refusal to work.

[7] HSO Beattie decided that a danger did exist for C. Pickering and R. Unrau based on the following factors and conditions:

• the number of inmates and the violent and unpredictable nature of the inmates being guarded;
• the reduced visual coverage that one (1) correctional officer in the catwalk provided versus the visual coverage of two (2);
• the reduced firearm coverage that one (1) correctional officer in the catwalk provided versus the firearm coverage of two (2).

[8] On June 22, 2005, HSO Beattie issued a direction under paragraph 145(2)(a) to direct the employer to protect any person from the danger immediately.

[9] He further confirmed his decision of an existence of danger in writing on July 28, 2005.

[10] On August 19, 2005, J. Wladyka wrote to withdraw the appeal.

[11] As a consequence, based on HSO Beattie's investigation report in the file, I hereby accept the employer' withdrawal, and confirm that the file is closed.

Summary of Appeals Officer's Decision

Decision No.: 05-036

Applicant: Service Correctional of Canada, Edmonton Institution

Respondent: Clint Pickering, Richard Unrau

Key Words: Refusal to work, decision of danger, direction, working in a gymnasium and recreation yard of the institution, only one (1) armed correctional officer posted in the gymnasium catwalks

Summary:

The applicant appealed a direction issued by a health and safety officer following his decision of an existence of danger after he investigated a refusal to work. The applicant withdrew his appeal and the appeals officer closed the file.