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HomeMy WebLinkAbout1991-1448.Semenciw et al.92-10-16 DecisionEMPLOYES DE LA COURONNE DE L'ONTARIO COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS street WEST, SUITE 2100, TORONTO, ONTARIO. M5G IZ8 180. RUE DUNDAS quest BUREAU 2100, TORONTO (ONTARIOj. M5G 1z8 BETWEEN BEFORE FOR THE GRIEVOR FOR THE EMPLOYER HEARING 4 16 326 1388 FACSIMILE, (4 16 326- 1396 1448/91, 1452/91, 1453/91, 1454/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Semenciw et al) - and - Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer A. Barrett M. Lyons D. Montrose Vice-Chairperson Member Member C. Dassios Counsel Gowling, Strathy & Henderson Barristers & Solicitors J. Ravenscroft Grievance Administration Officer Ministry of Correctional Services February 5, 1992 May 4, 5, 1992 DECISION This is a classification grievance of four grievors who are employed by the Ministry of Correctional Services at the Metro West Detention Centre in Toronto. They are presently classified as follows: - David Olsen, Storekeeper - Clerk 6 Supply: - Mike Semenciw, Clothing Clerk - Clerk 3 Supply: - John Dutka and Doug Houston, Store Clerks - Clerk 2 Supply All grievors say that their jobs entail extensive supervision and instruction of inmates, as well as security responsibilities, so that their core duties are substantially different from those set out in their Clerk Supply class standard. They do not seek to fit themselves into any other specific standard but ask that they be re-classified by way of a Berry order. These employees come under the General Operational Services category, the relevant portions of which are set out below: “This Category includes: ... ... - positions involving the warehousing of materials, equipment and supplies and including such related clerical duties as the preparation and checking of invoices, orders, bills of lading and inventory records. 2 This Category does not include: - positions involving the care and custody of patients, wards and inmates of psychiatric and correctional institutions or residents of Mental Retardation facilities where the personal care and custodial services are continuing and functionally unspecialized." Subsumed under the General Operational Services category is the Clerk Supply series in which these grievors are classified. The initial portion of the preamble is set out below: “ PREAMBLE CLERK SUPPLY SERIES These classes cover the positions of employees who perform a variety of clerical, manual, administrative repair or purchasing functions that are common to stockkeeping operations in the Provincial Government Service. If any employee specializes in only one of the many tasks involved in the operation of a stockroom, the position should be classified in another series more appropriate to the type of work. For example, positions concerned entirely with the clerical recording of transactions should be allocated to the Clerk, General series. Positions in which purchasing is the main function should not be classified in this series. Many factors, such as the maintenance of the necessary ledger or other records, inventory control, establishment of minimum - maximum requirements, etc., are common to all stockrooms and vary significantly only to the extent that the size of the stockkeeping function varies. Thus, the overriding criterion in making allocations in this series is the size, as defined in this preamble, of the stockkeeping function rather than any variation in the clerical or administrative functions associated with it. Supervisory positions covered by the classes Clerk 3 to Clerk 6, Supply will be assigned to one class higher in the series if purchasing, as defined below, is one of the functions requiring a minimum of 20% of the working time. 3 DEFINITION: Size of Operation: Because of the tremendous variation in the nature and organization of stockkeeping functions between departments, the number of staff required for the operation of a particular unit is the only practical basis of comparison for classification purposes, in all departments except Health and Reform Institutions. In the latter departments, patients or inmates are often employed in stockkeeping operations. Consequently, in Ontario Hospitals, the size, in terms of bed capacity, is the criteria used. The size alone of a Reform Institution ignores the possible existence of industries, which complicate the stockkeeping function, therefore the value of annual stock turnover is used as a basis of comparison for the determination of level." It is not in dispute that the grievors generally perform the stockkeeping functions set out in their class standard and in their individual job descriptions. As stated earlier, their dispute is with the extent they supervise and instruct inmates and are responsible for their security. They say that the preamble to the Clerk Supply series does not encompass such duties; all it says is that "inmates are often employed in stockkeeping operations". It does not say that the clerks should direct, supervise and train them. The employer argues that these employees, in addition to the regular salary for their classification, receive a custodial responsibility allowance of $2,000.00 per year to reflect their additional responsibilities with inmates. Appendix 8 to the collective agreement sets out how and when this custodial responsibility allowance is paid, as follows: 4 "This will confirm that effective January 1, 1984 a Custodial Responsibility Allowance of two thousand dollars ($2,000.00) per year is payable to employees of the Ministry of Correctional Services and employees working in training schools operated by the Ministry of Community and Social Services, in addition to the rate of pay specified for the class of the positions to which they are assigned, provided they fulfill all of the following requirements: (a) (b) (C) (dl The they are not professional staff such as teachers, nurses, social workers or psychologists: the positions to which the employees are assigned are not covered by classes which already take into account responsibility for the control of inmates or wards, such as Correctional Officers, Industrial Officers, Supervisors of Juveniles, Observation and Detention Home Workers, Recreation Officers (Correctional Services), Trade Instructors and Provincial Bailiffs; (i) they are required, for the major portion of their working time, to direct inmates or wards engaged in beneficial labour: or (ii) as group leaders/lead hands, they are directly responsible, for the major portion of their working time, for operations involving the control of a number of inmates or wards engaged in beneficial labour: and they are responsible for the custody of inmates or wards in their charge and are required to report on their conduct and lay charges where breaches of institutional regulations occur. “ four grievors, with Mr. Olsen in charge, run a warehouse area which stores food, cleaning supplies, toiletries and inmate and staff clothing. They are assisted by about four inmate helpers whom they assign as they see fit, primarily doing the manual labour jobs such as moving supplies from one area to another and compiling orders of supplies to go to different areas in the jail. They train 5 the inmate helpers to use material handling equipment, such as palette movers, and occasionally allow an inmate to use a tow motor. They instruct the inmates in safety measures, including WHMIS. The clerks take their inmate helpers to the loading docks to receive goods, and may even take them outside the loading doors to a storage trailer just outside. They escort inmates moving goods throughout the institution and must always be prepared to intervene where security or safety problems arise. Sometimes the clerks are asked to comment on inmates' work habits and attitudes to the parole board or the people running the temporary absence program. The inmates do not do any of the considerable paperwork involved in storekeeping, but they are assigned various other tasks in accordance with their capabilities. The grievors say they train the inmates in good work habits and warehousing skills in order to improve their employment Opportunities, and informally counsel the inmates with regard to their personal problems. The employer responds that the grievors overstate the extent and degree of the supervision and instruction they provide for inmates. The employer says that only minimum risk inmates are assigned to the stores area, and each is there for a short period of time ranging from a few weeks to three months, so opportunities for instruction are limited. The inmates are taught none of the paperwork aspects of the entire operation and are generally used as unskilled manual labour. The employer says that the direction and control of these inmate helpers fall squarely within the ambit of the custodial responsibility allowance. 6 There is considerable Grievance Settlement Board jurisprudence dealing with the very issue of when training and supervision of inmates, added to the regular duties of a classification, can take the incumbent out of his class standard. The union relies on Townsend, GSB 22/85 (Brent), for the proposition that whether or not the employee is paid the custodial responsibility allowance is irrelevant when determining whether the job is properly classified. At page 25 of that award, the Board said: "Clearly, whenever the allowance is paid, the Employer is recognizing that the employee is called upon to perform custodial duties. It assumes that there is a proper classification of the employee's job before the allowance becomes payable. If the job is not properly classified, the fact that the allowance is paid does not correct that wrong. We do agree, though, that if an employee's job is properly within a class series which does not recognize such responsibility as being part of the job, then the fact that those responsibilities are assigned when the job is performed within a correctional facility should not enable the employee to claim that his job should be classified in any of the 'classes which already take into account responsibility for the control of inmates.. . ' . " In that case, the grievor, who was classified as an Agricultural Worker 2, fell outside of his standard because it encompassed "only group leaders of two or more employees", and the grievor did not supervise any employees. However, he did supervise a gang of about eight inmates who, with him, ran a substantial greenhouse operation. The Board felt that the best fit for the grievor was in the Industrial Officer class series because they are charged with running an enterprise to produce certain end products using the 7 labour of inmates while teaching basic work skills and work habits. The Board found that the grievor was wrongly classified and originally ordered the employer to create an appropriate classification in the form of a Berry order. The grievor was not satisfied with the employer's compliance with the Board's order and requested a second hearing. The Board then ordered that the grievor be placed in the Industrial Officer classification which he had originally sought. In Braund, GSB 39/89 (Slone), a group of cooks at a correctional centre grieved that their jobs had evolved from merely preparing and serving meals at the institution to that of training and supervising inmates in those tasks and thus they had moved out of their assigned classification. That panel of the Board reviewed Townsend and several other cases and concluded that Townsend was to be distinguished on the basis that the grievor there clearly fell outside of his class standard irrespective of his custodial and training duties. The Board said at page 26: ... where the classification is prima facie appropriate, except arguably that it does not recognize the full degree of custodial responsibility allocated, it is our view that the payment of the CRA is relevant. The CRA is part of the bargain between the parties. It is a supplementary allowance for supplementary duties performed. It is the grievors' argument that those duties have changed the character of their jobs. If that argument were to prevail, then possibly every job involving custodial duties sufficient to enjoy the CRA could be held to be wrongly classified. That would render the CRA superfluous. More appropriately, in our view, the CRA should be seen as a consensual quid pro QUO for employees whose jobs have been given an added component which probably is not reflected in their classification, 99 8 but where the 'bottom line' responsibility of the job, as described in the standards, has not changed. In this case, the fundamental responsibility of the grievors is to get the meals on the table, on time, on budget and in a palatable form. Inmate help has always been a recognized component of the Cook 2 and 3 jobs. The additional responsibility for inmates is precisely the added component that the CRA was designed to cover." In Goforth, GSB 18/85 (Wilson), the Board commented on the distinction between "directing inmates ... engaged in beneficial labour", as set out in Appendix 8, and the duties described in the Industrial Officer class standard to "instruct and direct an assigned group of inmates". There it was said that it is the teaching aspect that matters and where, as in that case, the grievors who were Steam Plant Engineers at a correctional centre were required to train and instruct inmates on tasks required of them, "which duties may be recognised as legitimate apprenticeship time towards Stationary Engineer Certification", the Board found that those teaching duties were clearly as sophisticated or more so than the instruction given by Industrial Officers. The Board also found that the grievors were improperly classified in the General Maintenance class standard anyway because their substantial operational functions were not reflected in the class standard at all. Other cases have looked to the focus of the grievors' work to determine whether it is on the doing of the job itself, or on instructing the inmates. As noted in Braund, supra, it was determined that getting the meals on the table was the focus, and 9 the inmates were simply helping the cooks do their job. Similarly, in Barkley/Jones, GSB 1520/87 (Kirkwood), the Board found at page 10: '* We find that the grievors 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' 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 grievors bore the responsibility for the electrical work. It was up to the grievors to decide how many inmates were required each day, and how they would use the inmates. It still remained the grievors electrical work that the inmates were performing and the inmates were assisting the grievors in the performance of their work. " In that case, the class standard for the maintenance trades in which the grievors fell provided that "the incumbents are required to supervise, guide and instruct their assigned [inmate] helpers",. There the Board found that the grievors comfortably fit into their classification as Maintenance Electricians. In Ennis, Schuler, GSB 17/85 (Kirkwood), at page 14, the Board found on the evidence: . . .that the work which the grievors performed was primarily directed to the maintenance and installation of electrical work as opposed to being the custodian of the inmates with the primary focus on their security. Supervision of the inmates is merely inherent to any job which brings an employee in contact with the inmate." 'I 10 In a recent decision: Lunn, GSB 595A/90 (Dissanayake), the Board reviewed all of the above authorities and found the grievor properly classified as a Maintenance Plumber because: "While it could be said that the grievor ' teaches' inmate helpers, it is not as if he suspends his maintenance duties in order to conduct lessons for them. He is either performing his maintenance plumber duties himself with the assistance of the inmates, or he is directing the maintenance plumbing work performed by the inmates. In either case, the grievor remains responsible to get the job done to the appropriate standards expected. When he is instructing and directing inmates, the grievor himself is engaged in plumbing work." In that case, the class standard provided explicitly that part of the encumbents' duties included "supervision and instruction of.. .inmate helpers". In Ennis, Schuler, supra, the class standard included a duty to "supervise...inmate helpers". There it was found that the duty to supervise inmates included, by implication, a responsibility for the custody of the inmates, as the very essence of a correctional institution is to ensure the custody of its inmates. In Barklev/Jones, supra, the class standard for Maintenance Electrician provided that the "incumbent trains and supervises inmate helpers". In Braund, supra, the Cooks class standard required them to "direct the activities of.. .inmates". Furthermore, the standard provided: "All employees in positions classified as Cook 2 or higher in the series may be required to train and instruct...inmates". (The grievors were Cooks 2 and 3.) 11 The union seeks to distinguish the instant case from the above cases on the basis that the class standard for Clerk Supply states only: "inmates are often employed in stockkeeping operations". This, says union counsel, is an essential and important distinction. Counsel says that what these grievors do is far more than "direct inmates or wards engaged in beneficial labour" and being "responsible for the custody of inmates or wards in their charge and are required to report on their conduct and lay charges where breaches of institutional regulations occur", as set out in Appendix 8. In this case, the grievors clearly fit within their class standards with respect to their stockkeeping and clerical functions. We think Appendix 8 is relevant in assessing whether or not their duties with respect to inmates is the only feature which might take them out of their class standard. Appendix 8 makes it clear that the custodial duties for which the allowance is paid are in addition to the duties of the positions to which they are assigned. Those duties are additional duties not set out in class standards. To that extent they expand the class standards. While it is true that the class standards analyzed in the above-cited cases all make more mention of training and instruction than the Clerk Supply standard does, we also think that the training and instruction offered by the successful grievors was much more extensive than that offered by these clerks. The inmate helpers in the stockrooms do primarily manual labour. The clerks can direct 12 the inmates as they wish and are not responsible for teaching them job skills, except to the extent that they might wish to employ the helpers on some job or piece of equipment that requires instruction before deployment. The clerks determine whether or not and how much they wish to teach the inmates, but there is no requirement that they do any more than direct their manual labour and ensure their custody. Any necessary instruction of the inmates relates only to safety standards, and that is not a complicated or time-consuming endeavour. We do not think the instructional aspect in the storeroom necessarily goes beyond directing inmates engaged in beneficial labour. Thus their additional duties with respect to the inmates are covered under the custodial responsibility allowance. As the grievors are otherwise properly classified, their grievances must be dismissed. Dated at Toronto this 16th day of October, 1992 A. Barrett, Vice-Chairperson “I Dissent” (dissent attached) M. Lyons, Member D. Montrose, Member DISSENT GSB 1448/91 SEMENCIW ET AI, OPSEU & MINISTRY OF CORRECTIONAL SERVICES I have read the decision of the majority and with respect, I must dissent. I base my dissent on the following facts: 1) The General Operation Services Category (of which the Clerk Supply Series is a part) "does not include positions involving the ... custody of...inmates of...correctional institutions where the...custodial services are continuing and f unctionally unspecialized. “ 2) The preamble of the Clerk Supply Series recognizes that "inmates are often employed in stockkeeping operations"; however, nothing in the Clerk Supply Series refers to or describes duties entailing supervision and instruction/ training of inmates. the Laundry Worker Series (Ex. 11) (among others) which, in my opinion, does anticipate supervising and instructing/ training inmates. This is different, for example, from The grievors are entitled to receive the Custodial Responsibility Allowance (CRA) when "(c)(i) they are required, for the major portion of their working time, to direct inmates ...eng aged in beneficial labour. However, directing inmates is different from providing supervision (including assessment of work performed and reports to administration) and instruction/training. So, it seems to me that the grievors are entitled to receive ... 2 -2- the CRA when inmates are "employed in stockkeeping operations"; but surely receiving the CRA does not require the grievors to perform functions that are not anticipated by their class standard. For this reason, I would have awarded a Berry order in this case. Dated at Toronto this 5th day of October 1992.