HomeMy WebLinkAbout1987-1520.Barkley and Jones.90-11-13SETTLEMENT RkGLEMENT
DES GRIEFS‘
BETWEEN
BEFORE:
FOR THE
GRIEVOR
FOR THE
EMPLOYER
HEARING:
1520/87, 1521/87
IN TEE RATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Barkley/Jones)
- and -
The Crown in Right of Ontario
(Ministry of.Correctional Senrices)
B. Kirkwood
S. Urbain
F. Collict
S. Watson
Counsel
,irperson Vice-Cha
Member
Member
Gowling, Strathy 8 Henderson
Barristers & Solicitors
L. Szorady
Senior officer
Ministry of Correctional Services
June 11, 19 1990
October 11, 1990
Grievor
Employer
DECISION
The grievers are employed as Maintenance
Electricians at the Rideau Correctional Centre, Burritt's
Rapids, Ontario.
The qrievors claimed that they are improperly
classified, and asked the Board to classify them as
Industrial Officers 3, or alternatively as Industrial
Officers 2 or 1 in 'the Industrial Officers series, or
alternarively as Trade Instructors 3 in the Trade Instructor
series. Alternatively, they asked the board to order the
Ministry to create a new and appropriate classification for
them.
The Union's counsel argued that the classification
was improper as their duties did not conform to the Class
Standard in four ways:
1) the inmates performed the electrical work, and
therefore did not assist the qrievors in their
work;
2) the qrievors spent much of their time
instructing and supervising the inmates and
did not spend at least 60% of their time doing
electrical work;
3) custodial work was an integral part of their
job and reduced the amount of time available
to do electrical maintenance work; and
3) the qrievors were engaged in production.
The Ministry's counsel submitted that as found in
the decisions of &oundina et aL and Ministrv of Community
Page 3
Servm, ( D.M. Beatty), e
and wtrv of Cs Servw G.S.B.# 11/05; 1396/88A
(B.A.Kirkwood), d et al.) and utrv of
Correctional Servm G.S.B.# 39/89 (E.K.Slone), the onus is
on the union to prove that the qrievors are improperly
classified, It was the Ministry's position that the
qrievors' duties are properly reflected in the standard of a
Maintenance Electrician. She acknowledged thatthe.qrievors
have custodial duties, but submitted that the custodial
duties are part of their duties and the qrievors are
compensated for these duties by means of the Custody
Responsibility Allowance, which is provided for in Appendix 8
CC) (I), as attached to the collective agreement.
The Board in the .En.nis. qchuler (supra) case
summarised the tests that are to be applied when determining
whether the qrievors are properly classified, when the Board
stated at pages 3 and 4 of the decision:
As stated in the ~decision of (OPSEU(RoundinqJ arid
The Crown In U@t of the P=ovin..ce , * G.S.B. la/75
(D.M. Beatty), the onus is upon the union to prove
that the employer is not conforming to the classification system which has been established or
has, been agreed to. Therefore the union must
establish on a balance of probabilities that the
qrievors' jobs do not conform to their job
classification.
In order for the grievors to obtain a higher
classification, the Union must persuade the Board
that significant job duties are beyond those
assigned to the present classification and
constitute significant duties of the hi.qher
classification that the qrievors seek.(QPSEU
(M.Hilson) & The Crown in Riaht of Ontario , . rv of Education) G.S.B. 535/04 (Roberts),
th) ande Crown in Raqht of Ontario , ,
. rv of Tran.a&xortatlonand Communlcatlons
G.S.B. 26/80 (~Roberts), QPSRJJ (D.Freeman)'
Cro n in Riqht of Ontario * (-try of Revenue) # .
G.SyB. 323/81 (R.L. Verity)).
Page4
As found in many of the cases of the Grievance
Settlement Board, and as referred to in OPSEULM. . . The w in w of Om
of G.S.B. 107/83 (P.M. Draper), if the
Board finds that the qrievors are not properly
classified, the board must accept the
classification system as it is and interpret and
apply the classification system. The Board may
either place the qrievors into the appropriate
category or if there is no appropriate category,
order the employer to reclassify the qrievors.
Therefore the issues are as follows:
1. What duties do the qrievors perform;
2. Do the duties conform to the Maintenance
Electrician's standard;
3. If they do not fit the class standard of the
Maintenance Electrician, is there a better fit
within another class standard, such that there
are significant duties which the qrievors
perform which are assigned to the higher
classification which the qrievors seek.
If there is not an appropriate class standard, the
employer must be required to create a new classification to
meet their job functions, in accordance with the decision of
the Divisional Court in m and m Crown in Right of
Therefore, in order to determine whether the
qrievors are properly classified as Maintenance Electricians,
the Board must compare the duties which they perform and
compare them to the class standard.
Page5
The Maintenance Electrician standard states:
CLASS DEFINITION:
1. This class covers positions involving skilled manual work at the journeyman tradesmen level, in
the installation, maintenance, repair and general
up-keep of electrical equipment, wiring and
fixtures in or about a Government building,
institution, or other establishment, or in the
field. According to verbal or written
instructions, the employees in these positions are
given assignments by a Foreman, Maintenance
Foreman, Buildings Superintendent or Maintenance
Superintendent or other official responsible for
maintenance or other services. They sketch or
follow schematic diagrams as necessary and carry
the work to completion according to regulations and
accepted practices and following recognised
procedures and techniques of the electrical trade.
These employees may'determine work methods and the
work is reviewed for adherence to plans and
instructions, satisfactory production and quality
of workmanship.. Duties may also entail the
supervision and instruction of apprentices,
unskilled or semi-skilled workers and patient,
resident, trainee or inmate helpers. These
employees may also be required to perform related
or other tasks but at least 60% of their work time
must involve use of the skills and knowledge of the
electrician's trade.
Employees in these positions wire, inspect,
adjust and repair the electrical components of
electrically powered or controlled equipment such
as: elevators; laundry machinery, refrigeration and
air conditioning machines, heating equipment,
cooking and baking equipment, paint baking ovens,
kilns, hydraulic presses, tradesmens' and machine
tools, tailoring and sewing equipment, pumps, milking machines, emergency diesel alter.nators,
electrically operated doors and locks.
They install and repair such items as:
internal telephone and communications systems;
radio, T.V., and electronic equipment: lighting
circuits; fire or other alarm systems.
These employees install, repair or replace
items such as (high or low voltage): electric wires
and cables; transformers; generators or
Page6
alternators; switches, circuit breakers, relays:
panel boards: meters; traffic or flasher lights.
They may provide electrical service to construction
sites, mobile trailers and the like, and they
assist and co-operate with other tradesmen and non-
trades staff.
There was no material dispute on the balance of the
evidence. Mr. Barkley provided most of the evidence and it
was corroborated in a more general way by Mr. Jones.
Mr. Barkley explained that the grievors are part of
the maintenance shop at the Rideau Correctional Centre and
work with other tradesmen. Each day a gang of inmates are
brought to the maintenance shop and are interviewed by the
grievors ' supervisor to determine their abilities and
particular aptitudes and then are selected to perform various
maintenance functions with the appropriate trades.
Mr. Barkley determines how many inmates he needs to
do his work and recruits them from the gang. Those inmates
remain under his supervision for approximately seven hours a
day for as long as they are with the maintenance gang, which
is usually for periods up to three months, although there may
be an occasional person who would stays for a longer time.
As 90 percent of the time the inmates do not have
above grade 10 education, do not have a background in
electrical work, and have never worked before, Mr. Barkley
instructs them, by doing the initial demonstration and then
by having the inmates repeat and copy the procedures. He
supervises the inmates in electrical methods. He explains to
them why certain procedures have to be performed and to what
standard they must conform. He supervises the quality of
their Kork and ensures that the work meets the standards of
the electrical codes.
Page7
The evidence of Mr. Barkley and as corroborated by
Mr.- Jones confirmed that the Position Specification, and
Allocation of the Maintenance Electrician substantially
reflected the grievers' duties, with the exception that the
grievers stated that they did not do "manual work involving
the use of the skills.and knowledge of the electrician's
trade for at least 60 percent of the work time." Mr. Barkley
testified that approximately 80 percent of his time was spent
with the inmates of which only 20 percent of his time was
"hands on" electrical work, which he defined as the time
Spent handling his tools.
.The Position and Class Allocation Form states:
2. Purpose of position (why does this position
exist?state goals objectives etc.)
To provide skilled electrical maintenance and
repair services. for a variety of security and
industrial electrical systems and related equipment
in a minimum/medium'security setting. To perform
other related duties.
3. SUMUARY OF DUTIES AND RESPONSIBILITIES
(INDICATE PERCENTAGE OF TIME SPENT ON EACH SIGNIFICANT
FUNCTION INDICATE SCOPE EQUIPMENT, WORKING CONDITIONS,
UNUSUAL FEATURES ETC.)
l.Performs skilled electrimce. reoair. # * and installation duties in a nuumum/medium sett inq
md in residences bvt
80%
-discussing projects and requirements with
supervisor to determine needs, priorities,
recommend procedures and methods based on own
technical knowledge;
-checking all aspects of institution's electrical
systems on a continuing basis reporting
requirements to supervisor, detailing material
requirements, etc,;
- maintaining the refrigeration plants by
performing necessary electrical and mechanical
repairs;
-maintaining automatic cell door and grill locking
systems including various local and master control
switch panels repairing or replacing cables,
Page8
transformers, switch gear, control gear as
necessary;
-maintaining the stand-by diesel generating
equipment used in emergencies;
-repairing and maintaining the Institution's
Automatic Telephone System;
-replacing faulty equipment or wiring, motors,
switches, appliance points, wiring as necessary;
-prepares drawings and specifications for wiring
and installing new locking and control systems,
fire bell and emergency alarm systems, electrical
light systems, e.g. installation of fluorescent
lights;
-rewiring motors etc. after installation;
-maintaining T.V. installation system and radio
system;
-replacing fuses, rewiring electrical equipment,
e.g. lamps, motors, etc.:
-oiling, greasing, cleaning electric motors,
replacing brushes, bearings, coils, etc,
-supervising inmate helpers assigned
-instructing inmate helpers in electrical methods,
use of tools, assigning and checking work, ensuring
custody and safety of inmate helpers;
-warning inmate helpers in minor misconduct, laying
charges in major misconduct;
-reporting on conduct and industry of inmate
helpers;
-maintaining record of names, dates, and hours work
by assigned inmates;
Note - Incumbent performs manual work involving the use of he skills and knowledge of the electrician's
trade for at least 60% of their work time - Incumbent trains and supervises inmates helpers
in electrical methods as well as ensuring their
custody and safety,
(K-l salary note applicable)
2.c
20%
-estimating materials required and submitting
requirement to supervisor indicating quantity,
type, etc. -recommending replacement of equipment and tools;
-maintaining a record of work carried out,
materials used, etc., forwarding information to
supervisor;
assisting other maintenance staff, in carrying out
of major maintenance repairs, or plant overhaul;
-forwarding record to Maintenance Supervisor as
required;
:.
-assisting and relieving other staff in emergency
and staff shortqge.situations (e.g. security duties
in institutional shops, etc,);
-daily inspection and servicing of the sewage and
water treatment as assigned;
-other related duties as assigned.
We find that the Position and Class Allocation
accurately sets out the duties of the maintenance
electrician. There is no necessity that at least 60 percent
of the time be spent on electrical work on a ."hands on"
basis. The requirement is to "involve" the skills and
knowledge of the electrician. As the grievors spend at least
80 percent of their time with the inmates, during which time
they are instructing and supervising the inmates, the
grievors are drawing on their skills and knowledge of the
electrical trade. Therefore, although the grievors only did
"hands on" electrical work for about 20% of the time, they
involved their skills and knowledge of the electrical trade
for most of 'each day.
The next question is whether these duties as
reflected in the Position Specification and Class Allocation
and by the evidence of the grievers,, conform to the class
standard of a.Maintenance Electrician.
The class standard of Maintenance Electrician was
reviewed with the grievors.
The Maintenance Services Category set out a general
description of the work to be included within the category.
It states:
This Category includes:
- positions in the general skills and trades areas involving the performance of
unskilled, semi-skilled and skilled work
Page 10
relating to one or more of the trades
and/or involving the operation and servicing of equipment or vehicles. These
positions entail such duties as the
fabrication, alterations, maintenance, and
the operation of buildings, structures,
roads, roads, grounds equipment or
vehicles.
Mr. Barkley admitted that the Maintenance Services
Category description was an accurate description of the work
that he performed. He also acknowledged that the preamble to
the Maintenance Trades classes accurately described his
duties with the exception that he disputed that "In all
positicns in the maintenance mechanic or trades classes, the
incumbents must devote at least 60% of their time to
maintenance or skilled trades duties.*'
As we have already found that the grievors are
performing electrical work and are using their skills and
knowledge of the electrical trade for more than 60% of the
time, there is no further issue on this factor.
The other material dispute in the description of
the Class Standard was whether the grievors "carry the work
to completion according to regulations and accepted practices
in following recognised procedures and techniques of the
electrical trade." Mr. Barkley testified that it was the
inmates that carry out the work and not the grievors.
We find that the grievers recognized their
custodial responsibilities and the philosophy of the
institution to use the inmates for labour in order that they
can be productive by using the inmates to perform "their"
(the Board's emphasis) work. The grievors delegated their
electrical work to the inmates and supervised the inmates to
ensure that the work performed conformed to Ontario Hydro
standards. Nevertheless, the grievers bore the
Page11
responsibility for the electrical work. It was up to the
grievers to decide how many inmates were required each day,
and how they would use the inmates. It still remained the
grievers electrical work that the inmates were performing and
the inmates were assisting the,grievors in the performance of
their work.
Therefore we find that the grievers' duties met the
criteria that the Maintenance Electrician "carries the work
to completion according to regulations and accepted practices
and following recognised procedures and techniques of the
electrical trade."
The grievers also did not agree that the equipment
which they worked on did not include some of the equipment
listed in the standard, such as, elevators, paint baking
ovens, tailoring and milking machines, traffic and flasher
lights. We find however, that the machinery listed in thee
standard are only examples and therefore there is no
necessity for the grievers to use or repair or wire all of
the equipment listed.
The Union's counsel argued that the grievers'
custodial duties brought them outside the Class Standard.
Because of then nature of the institution, the
custodial aspect of the job must be the overriding concern of
any employee in the institution, and it must be paramount to
those employees such as the grievers who have inmates under
their charge.
The custodial aspect is recognised in the Preamble
to the Maintenance Trades Classes as follows:
. . . the incumbents may be provided with patient,
resident, trainee or inmate helpers. In all trades
or maintenance mechanic positions where such
Page 12
helpers are provided, the incumbents are required
to supervise, guide and instruct their assigned
helpers according their capabilities and
temperament and, so far as is possible, to break
down the work into tasks their helpers are capable
of performing.
It is further reflected in the Class Standard by:
Duties may also entail the supervision and
instruction of apprentices,~ unskilled or semi-
skilled workers and patient, resident, trainee or
inmate helpers.
It is further detailed in the Job Specification by:
-instructing inmate helpers in electrical methods,
use of tools, assigning and checking work, ensuring
custody and safety of inmate helpers...
However, these duties do not reduce the time spent
on electrical maintenance matters to any degree. As can be
seen by Mr. Barkley he combines both his custodial duties and
his electrical duties by having the inmates perform much of
his work. In that way the inmates are kept busy and he is
free to watch the inmates not only for the quality of their
work, b,Jt to ensure that they remain in custody.
Of the remaining 20 percent of the time spent by
the grievors, 10 percent is spent on administrative work
which included matters such as writing occurrence reports,
accident and injury reports, work evaluation reports and the
other 10 percent related to electrical work which usually
related to security but which was all work which could not be
done in the presence of inmates.
The administrative work flows from the custodial
responsibilities, but that work is not so great as to take
the grievers outside of their Class Standard.
Page13
Therefore, when considering the grievers' duties,
we find that the grievors' duties fit comfortably in the
Maintenance Electrician standard. It can be seen clearly
from the Position Specfication and by the grievers' evidence
that the grievor's duties are focussed on the maintenance of
the institution and its equipment, and the Maintenance
Electricians use the inmates to carry out these functions.
The Union's counsel urged us to find that the
grievers duties fit better into the 'Class Standards of the
Industrial Officer series or the Trade Instructors series.
The Industrial Officer 3‘Class Standard states:
Employees in, positions allocated to this c~lass
manage a small to medium or relatively complex
production operation such as the Tailor Shop at
Rideau Industrial Farm, the Tailor Shop at
Millbrook, or the Upholstery Shop at Guelph, or the Tailor Shop at Burwash. OR They assist in
management of the larger or more complex production
operations such as the Brick and Tile Mill at
Mimico, the Machine Shop, or the Tailor Shop at
Guelph.
AS managers, they are responsible for
estimating and procurement of materials, for
discussing costs with superiors and for making
recommendations on new products to be processed.
They make recommendations to superior on staff
personnel matters.
As assistants to managers, they share the
responsibility for quantity and quality of
production and for security of inmates. They
personally perform work requiring technical skill,
experience and knowledge comparable to journeyman
standing in a trade.
These employees train groups of inmates in
good work habits and technical skills, control the
quality of production and assign inmates to various tasks in accordance with their capabilities. They
prepare daily reports on inmates' industry and
conduct. They may take over any position in
theproduction routine in order to investigate and
correct complaints or to demonstrate proper work
procedures.
In order for the Union to succeed, it must show
that there are significant duties or core duties which fit
into the higher classification which they seek. The case of
-LEdward and the &&try of w
Services G.S.B. #11/-/S (Professor K. Swinton) points
out that the mere similarity of certain tasks does not
necessarily mean that the grievers become entitled to the
higher classification.
Page 14
The Board stated at page 10:
. . .
Job classifications often contain overlapping
duties, for it is difficult to design watertight
job compartments. This makes the task of
classification more difficult, although it does not
necessarily mean that the grievors, because they
perform many
of the same tasks of the senior
classification, are entitled to that senior
classification. (L.C.B.O. and Liquor * . 35/71; Windsor (1975):
7 L.A.C. (2d) 380 (Adams).)
and at p. 11
The tasks performed by individuals in different
classifications may appear very similar, yet it
must be kept in mind that the classifications have
been designed for a purpose - whether to reflect
different emphases with regard to similar tasks, or
to reflect greater discretion or responsibility by
those in one of the classifications, or to reflect
the higher qualifications demanded of those in the
more senior classifications (the aim being to
preserve the morale and status concerns of those
more highly qualified in a particular field of
endeavour). An arbitration board must therefore be particularly careful in assessing classification
grievances where there is extensive overlap in job
duties, so that a decision does not interfere with
,:.
P
Page15
the overall aims of the. classification system. The
onus is on the grievor to show that he falls within
the higher classification, and where there is
extensive overlap in job duties, he should show
~that his job, in practice, is the same as that performed by a person properly within the higher
classification.
Although the grievors may pe'rform some of the core
duties of the Industrial Officer, such as sharing
responsibility for the security of inmates, performing a
technical skill, training inmates in good work habits 'and
technical skills, they fail to meet the distinguishing
characteristic from which all the Industrial Officers
responsibilities flow, is the running a production
enterprise. This setting is found in the first paragraph and
is emphasised by reference to "quality of production",
"control the quality of production" and the possibility that
they "may take over any position in the production routine",
when setting out the other features of the job in the other
paragraphs.
The grievers testified that 75% of their work is in
renovations and repair work. It cannot be said that these
grievers either "run an enterprise" or "produce certain end
products using inmate labour." They therefore do not
participate in the production of items and therefore do not
meet the core duty of any level Industrial Officer.
Although the grievors may share similar custodial
duties with the Industrial Officers, who fall within the
greater category of Correctional Officers, the custodial
features of the jobs are an example where duties may overlap
duties in another category, but the emphasis in the two class
series are different and the persons do not share the same
classifiation.
Page 16
Alternatively, the Union's counsel argued that the
instrucltion of inmates was a key component to their jobs and
brought them outside the Maintenance Electrician standard and
moved them into the Trade Instruction Class Standard as Trade
Instructor 3s.
The Trade Instructor Class Series describes the
position generally as:
Positions allocated to this class series are
characteristically designed to aid in the
rehabilitation of inmates students in Ontario Reform Institutions through programmed training
which includes classroom as well as practical
instruction. The objective is to provide a means
of self-expression, to arouse and encourage
interest in a trade or skill and to motivate the
students to continue through their studies after
release or discharge and to eventually establish
themselves as journeymen in their chosen trade.
While the work of the student-in-training may
be utilised in a variety of ways such as: the
construction, maintenance or repair of buildings;
the production of furniture or fittings for use in
the institution or the maintenance and repair of
machinery; such activities are incidental to the primary function of student training and rehabilitation.
Where the provision of services or the
production of goods is the significant purpose of
the position it should m be allocated to this
series although instruction of inmates may be an
inherent part of the job.
We also do not find they fall within the Trade
Instructor Class Series. The focus of the Trade Instructor
series is the rehabilitation of student inmates in Ontario
Reform Institutions, in order that they can establish
themselves as journeymen in their chosen trade.
In support of that aim, the Trade Instructor Series
requires program training which includes classroom as well as
:
Page 17
practical instruction. While a classroom may include the
field in some circumstances, in this instance, "classroom" is
juxtaposed with "practical instruction" which creates a
distinction between the practical knowledge gained in the
field and the more theoretical knowledge acquired in a more
formalised or traditional classroom setting.
Furthermore, the Trade Instructor 3 performs the
duties of the Trade Instructor 2, but provides training in
the more. complex areas, which includes electrical
installation.and repair and the Trade Instructor 1 is tied to
the duties of the Trade Instructor 2, but provides training
in the less complex areas.. The Trade Instructor 2 standard
develops the classroom requirement set out in the preamble to
the series and requires the "incumbents of positions in this
class plan courses of instruction, prepare tests and
examinations, grade students and evaluate their progress."
They are essential duties for a Trade Instructor 2.
In this case, the instruction was of a practical
nature in the field and was done by correction and
questioning. There were no examinations.
There were no .recognized programs which complied
with the standards of apprenticeship or programs which were
accepted by the government. Although one inmate was able to
use the time spent on electrical work while he was an inmate,
to meet some of the requirements of an apprenticeship
program, there is no "recognized program" in the institution
that the grievors taught. Furthermore, as the grievors are
free to delegate work and to match the skills of the inmates
with the work to be performed, it resulted in an
individualizqtion of the tasks to be performed and did not
standardise the tasks and standards that are inherent in a
"recognised program."
Page 18
In summary when considering the duties of the
grievors, we find that the grievors are comfortably and
properly classified as Maintenance Electricians. Although
the grievors may have some of the core duties of the
Industrial Officers and some of the duties of a Trade
Instructor, the emphasis in those Class Standards are quite
different from the class standard of the Maintenance
Electrician, to which the grievors comfortably conform.
Therefore, as the Union has failed to establish
that the grievers perform the key duties of the persons in
the higher classification, this grievance is dismissed.
Dated at Toronto, this 13th day of November, 1990.
B.A. Kirkwood, Vice-Chairperson
S. Urbain, Member
F. Collict, Member