HomeMy WebLinkAbout1988-0319.Martini et al.93-08-09 ONTARIO {' EMPLOY~-S GE LA COURONNE ('~
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319/88, 323/88, 325/88, 326/88, 531/88,
532/88, 646/88, 691/88, 692/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Martini et al)
Grievor
- and -
'The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE': A. Barrett Vice-Chairperson
J. C. Laniel .Member
I. Cowan Member
FOR THE A. Lokan
UNION Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE J. Knight
EMPLOYER Counsel
Fraser.& Beatty _
Barristers & Solicitors
HEARING October 3, 1991
December 16, 17, 1991
April 10, 22, 1992
October 14, 1992
February 22, 23, 1993
.May 20, 1993
('~ D E C i S I 0 N (~;
This decision- concerns 12 consolidated classification
grievances which arose in the Spring of 1988 from Supply Clerks in
four correctional' institutions in. Southern Ontario. A~i of the
grievors seek to be reclassified in the Industrial Officer category
or, in the alternative, seek a Berrl order based on a class
standards argument with "elements" of usage. All grievors say that
they train and supervis~ inmates to an extent not contemplated in
the Clerk. Supply class standards, and this training function is not
encompassed by the custodial responsibility allowance'in that they
are doing far more than "directing inmates engaged in beneficial
labour". In addition, the grievors at the Guelph Correctional
Centre allege that they have more 'correction'al and'custodial
functions than Supply Clerks at other institutions due"to their
unique standing Drders which require them to respond to blue alerts
and require them to search inmates, other than their own, on a . .
frequent and regular basis.
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.
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 o~ 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.
DEFINITION:
Size of Operation:
Because of the ~remendous 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 tha~ the preamble to the
Clerk Supply series does not encompass such duties; Lall 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 employe~s, 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':
"This will confirm that effective January 1', 1984 a Custodial
Responsibility Allowance 0f 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 fulfil all of the following, requirements:
(a) they are'not professional staff such as teachers, nurses,
social workers or psychologists;.
(b) 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;
(c) (i) they are'required, for the major portion of .their
working time, to direct inmates or wards engaged in
beneficial labour;
(ii) as group leaders/lead hands, ~they are directly'
responsible, for the major portion of their working
~ime, ~for operations involving the control of a
number of inmates or wards engaged in beneficial
labour;
(d)· 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."
There is considerable Grievance SettlementBoard 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 ~hich
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'
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. Thatpanel 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 pFima 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,
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 Offi6er class standard to "instruct and direct an
assigned group~ ~f 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 .co'rrectional centre
were required t° 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. ~he 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
'the inmates were simply helping the cooks do their job. similarly,
in Barkley/Jones, GSB 1520/87 (Kirkw0od), the Board f~und Et 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 evidonce
" ...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."
In Lun~, 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 griever himself
is engaged in plumbing work."
In that case, the class standard provided explicitly that part of
the incumbents'- 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 f~und that {he 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
Barkley/Jones, supra, the class standard for Maintenance
Electrician provided that the i'incumbent trains and supervises
inmate helpers". In Braund, supra, the Cooks class standard·
required them to "direct the activities of...inmates'!. Furthermore,
the standard p~0vided: "All employees in positions classified as
Cook 2 or' higher in ~he series may be required to train and
instruct...inmates". (The grievers were Cooks 2 and 3.)
The Union cites Schrader, GSB 378/89 (Wils0n),~where a person
classified as Agricultural Worker 2 was reclassified by the Board
to the-Industrial Ofiicer 2 Standard. On page 13'the Board held:
"Based on the evidence before us we must.conclude 'that the grlevor
is a qualified, well-trained horticulture and landscape technician
who conducts an operation which, in terms of work exposure for the
inmates, is comparable to a commercial grower and lanascape
operation." On page 12 of that decision the Board found that the
~rie~or was engaged in'far more than the supervision of unskilled
labour. "He is teaching a job which does require applied
technique. He himself has skills that might be 'described as
craftsman's skills. His inmates when assigned to hi~ have to be
taught everything, including a work ~thic itself-and the basic
skills appropriate to-landscaping and horticulture."
During the lengthy course of our hearings in this matter, two
decisions were issued dealing directly with Supply Clerks in
Correctional Institutions. in Jalea & Green, GSB 1052/89 (Lowe),
the Board framed the issue as follows at page 10:
"The question is not therefore whether or not there exist _
duties and activities performed by the grievor which are
not mentioned in the class standard, but rather, is the
substance or core of the grievor's duties so at variance
with that set out in the class standard that the standard
cannot fairly'be said to describe the grievor's role in
the organization."
There it was held that a Clerk 2 and a Clerk 6 at the Mimico
Correctional Centre supervising four to six inmates and being
responsible for showing the inmates what to do in the stockroom,
reporting on misconducts and on occasion taking part in strip-
searches of inmates, were properly classified in the Cierk Supply
'series. The Board found that the additional duties with inmates
were covered by the language of Appendix 8 which, expressly requires
the employee to be one who "directs inmates engaged in beneficial
labour...is responsible for the control of a number of
inmates~..and is responsible f_or the custody of inmates in his
charge."
In Semenciw et al, GSB 1448/91 (Barrett)_, it was found that
four Supply Clerks at the Metro West Detention Centre were not
improperly classified in their series despite their~ supervision,
instruction and security responsibilities for inmates. In that
case it was found at page 11:
"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 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 endeav0ur. 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."
With respect to the instant grievances, we heard evidence
first on the seven Guelph Correctional Centre grievances. The
grievors are: Mr. Eckardt (Clerk Supply 7), Mr. Gallagher (Clerk
SupPly 5), Ms. Austin (Clerk Supply 4), Mr. McCann (Clerk supply.
4), Mr. Martini (Clerk Suppty 3), Mr. Robinson (Clerk Supply 3) and
Ms. Swan (Clerk~Supp!y 3).'Those' are all of the Supply Clerks at
Guelph, with one anomalous exception. Mr. Singh is classified as
a Correctional Officer 2 bdt works as a Clerk Supply 2 Under the
supervision of Mr. Gatlagher and Mr. Eckardt. Mr. Singh'S situation
arose as a result of a 1979 Grievance Settlemeht Board decision,
GSB'#240/79 (Eberts), wherein it was held that the employer must
accommodate Mr. Singh's religious beliefs by allowin~ him to wear
a beard even though this prohibited him from acting effectively as_
a Correctional Officer. Thus he was placed in a Clerk Supply 2
position where he has remained ever since, but still retains his
Correctional Office status and salary.
Mr. Martini is a Clerk 3 Supply and it is his job to provide
relief.staffing in a variety of areas, such as the clothes room,
admission and. discharge, stockrooms and canteen. In the admission
and discharge unit, Mr. Martini would supervise inmates during
admission and discharge, prepare a variety of documents, photograph
and fingerprint inmates, re~ord clothing and personal property for
new admissions and release clothing and property to dischargees.
The unit is supervised by a CO3 and, at the time of the grievances,
two Clerks would assist. In the Fall of 1989 (after the
grievances), Mr. Martini's relief duties in admission and discharge
were curtailed, apparently as a result of someone else's grievance.
From then on, coverage for admission and discharge became the
responsibility of Correctional Officers. This would appear to ~e
an ~admission by management that the duties in admission and
discharge are more properly fulfilled by Correctional Officers.
This fact would affect Mr. Martini's grievance if they had been
part of his core duties prior to March 1988, when he filed his
grievance. On the evidence though, Mr. Martini, who was hired in
· 1987, did not commence admission and discharge duties until late
1987 or early 1988. Mr. Martini's calender reveals that he spent
fifty-two days in admitting and discharge in 1988, which was about
twenty-two percent of his working time. T-hat 'could certainly be
considered a core duty in 1988, and might merit reclassification.
if it continued. However, prior to the grievance Mr. Martini did
very little of this'work and it was discontinued about a year-and-
a-half after the grievance. We would not order a retroactive
reclassification in the form of a Berry order to encompass duties
outside one's classification which were imposed only for a discrete
period of time, and later rescinded. .
we must look to Mr. Martini's other relief duties around the
time of his grievance to see if he is properly'classified in the
Clerk Supply series. Mr. Martini spent ten to fifteen percent of
his time performing relief duties in the inmate clothing room and
another ten percent of his time relieving clerks in the canteen.
The rest of his time was spent helping out in the main stores area.
To examine the nature of his relief duties we have looked at the
full-time duties of the clerks he replaces in those areas.
In the canteen, a Clerk 4 and two Clerk 3's supervise about
five or six inmates and fill inmates' orders for such sundry items
as toothpaste, candy, pop and tobacco. The inmates fill the orders
and a Clerk tallies the cost and checks to see that the inmate has
sufficient funds in his canteen account to pay for his order. The
inmates also stock shelves and help deliver' the canteen orders to
the various units. The canteen Clerks allege that the training of
inmates to compile these orders puts them in the same~category as
Industrial Officers wh~ instruct inmates and supervise work in
various industries. ~On the evidence, we find that these duties do
not amount to more than "directing. inmates engaged in beneficial
labour" as set Qut in the custodial responsibility allowance, and
do not Constitute the type of training and production contemplated.
in the Industrial Officer standards.
Ms. Austin is a Clerk 4 Supply who runs the inmate clothing
room with the help of eight to ten inmates. The sort of work these
inmates do is normally done in an institution laundry which is run
by Industrial Officers. At Guelph, there is not enough room in the
laundry to do the sorting, folding and organizing of the clean
laundry, so it is done in. the separate inmate clothing room. The
clothing room has a sewing machine, and Ms. Austin always
supervises one inmate on the sewing machine doing minor repairs and
alterations. Ms. Austin usually gets an inmate experienced on the
sewing machine, perhaps someone who had been trained in the textile
shop, but Ms. Austin would often have to train the inmate up to her
exacting standards. The other inmates were trained to sort, size,
fold and store the clothing and to assemble "blue boxes" containing
numbered running shoes, locks, cups, tobacco and toothpaste for new
inmates. Ms. Austin testified that she spent one-half h~ur to one
hour per day working with the sewing machine operator.
We heard evidence from the Industrial Officer 3 who runs the
institution laandry with two other Industrial Officers and about
30 inmates. Inmates in the laundry room do many of the same sorting
and folding functions 'as those in the clothing room but,' in
addition, they are trained to operate the washers and dryers, flat
irons, a shirt folding machine, steam press and pillow making.
There are two sewing machines in the laundry used in the pillow
making job, but no inmate clothing repairs are done in the laundry.
Certainly Ms. Austin's job~has aspects of a Laundry Officer's
job. She directs a large number'of inmates and teaches one inmate
at a time to do sewing machine repairs and alterations. The
training of inmates to sort and fold clothing does not in our view
constitute the sort'of.job skills t~aining the Industrial Officers
provide and falls fully within the ambit of stockkeeping functions.
Sewing machine operation is an industrial skill, but Ms. AuStin
does not usually train these operators from scratch. Generally
they have already been trained in the textile shop or in the
community and Ms. Austin shows them how to apply those skills to
alterations and repairs. We cannot say though, that the amount of
time Ms. Austin spends at this task, nor the nature of the skills
taught are sufficient to put her in the Industrial Officer series,
nor take her out.of.the Clerk Supply series. The vast majority of
her responsibilities are involved with receiving, stOring and
distributing inmate clothing.
The grievors who run the very large main Stockroom,~ Mr.
Eckardt and Mr. Gallagher, and sometimes Mr. Martini, supervise
only one or two inmates, usually one, and perform all of the usual
stockkeeping functions in receiving, storing and distributing goods
and inventory control. We are not persuaded that responding .to
blue alerts and the r~gular searching of.inmates are outside of
the normal custodial duties required of people who receive the
custodial responsibility allowance' · Searching one's own inmates
is part of being "responsible for the custody of inmates or wards
in their charge" as specified in Appendix' 8 to the Collective
Agreement. The fact that these clerks search inmates other than
their own due to a policy change in the institution arising out of
a Grievance Settlement Board decision does not, in our view, change
the nature of the duty, or the. significance of it. Similarly,
although responding to blue alerts cannot be said to 'fall within
the wording of Appendix 8, the frequency of this ~esponse
requirement, particularly in the outside, stores area, is so low
that it cannot be described as anything more than a peripheral
duty. All staff in the institution are required to respond to blue
alerts re~gardless of their 'classification, and when doing so they
act only as back-up for Correctional officers.
Now we address the usage aspect of these grievances. In all
of the stores areas,'when a Clerk is absent and. Mr. Martini is not
available to replace him or her, a Correctional Officer is almost
invariably deplOyed.' Thus, in.many cases, a lower-paid Clerk is
supervising a higher-paid Correctional Officer. This is a permanent
situation in the case of Mr. Singh, the Correctional Officer who
has been filling a Clerk Supply 2 position for many years. Mr.
Singh's Supervisor 'is Mr. Eckardt, who is a Clerk Supply 7 and
earns more than a C02. However, the AssiStant Storekeeper. who is
.a Clerk Supply 5 and covers for Mr. Eckardt in his absence earns.
less than a. C02. The Union relies upon Beals and Cain, GSB 34/79
(Draper) for the proposition that an' employe~'s position is
improperly, classified if it is not placed in the. highest
classification in the system hierarchy to which his work, measured
against the work of ~ther employees' whose positions are in related
classifications, 'entitles him. Furthermore, in order to respect
the~proper internal.i~tegrity and hierarchy Of 'jobs, a supervisor
should be classified higher than the people he or she supervises.
(Anstett GSB 5/85 (Knopf) and Heslinga GSB 12/85 (Kirkwood)). This
is.the sole argument.of the grievors from the Toronto Jail and we
will' deal with it below. Suffice it to say here that we do not
agree with the proposition that one can found a usage argument
based on temporary out-of-classification job duties.
18
With respect to Mr. Singh, his case is'a recognized anomaly,
Y
and is not a case where the.employer's classification practices
differ from the written classification standards. Mr. Singh
performs only Clerk Supply 2 duties and is clearly, but not
surprisingly due to the unique factors in his case, wrongly
classified as a Correctional Officer 2. That is. not an adequate
foundation for a usage argument and certainly not for a standards
argument.
In summary then, With respect to the Guelph Correctional
Centre grievors, we find that they are properly classified in the
Clerk Supply series and that the custodial responsibility allowance
adequately covers their extra training and custodial duties with
inmates. We think that these grievances on their facts are
substantially similar to Jatea & Green'and Semenciw (supra) so that
a similar result should be reached and the grievances must be
dismissed.
We mOve next to the two grievances arising ou~ of the Toronto
Jail. Mr. Menarik was a Clerk Supply 2 and Mr. Kirby was a Clerk
Supply 6 at the time their .grievances were filed in May 1988. At
the hearing, these grievors abandoned their argument with respect
to the Industrial Officer comparison based on the degree of
supervision'and training of inmates.. They base their argument on
Beals & Cain, Bors. et al, GSB 1283/91 (Barrett), Heslin~a and.
Anstett, cited supra, for a usage argument. For some years, and
in particular, for the year prior to the grievances, Mr. Menarik
was absent a great deal of time. In the year prior to the
grievances he was absent for a total of 94 days, sixty of which
were' vacation and the remaining thirty-four were sick days. In
almost every case he was replaced by.a Correctional Officer 2.
Thus for those 94 days Mr. Kirby was supervising a higher-paid and
higher-c~assified CO2. Therefore he is'requesting pay at the CO3'
level for the period from twenty days prior to the .filing of the
grievance to August 1989, when he left the jail. Similarly, Mr.
Menarik requests the difference in pay.between a Clerk Supply 2 and
a Correctional Officer 2 for the period from twenty days prior to
his. grievance until his retirement date in-February 1990. On his
behalf it is argued that he should be classified at the same level~
as the person .who replaced him for approximately fifty percent of'
his working time, i.e. CO2.
It was the Employer's evidence that of the 190 staff at the
jail, 138 are Correctional Officers. Pursuant to standing orders
a Clerk can never be alone in the stockroom and therefore when Mr.
Menarik was absent, he had to be replaced. The replacement person
had to be'someone familiar with-key control procedures and working
with inmates. Besides CO2's, the only other people available to
replace the Clerks are the maintenance workers, and Occasionally
they fill in if they are not otherwise engaged. Usually, however,
it is the C02's who-are employed because that is the largest
available labour pool from which to draw.
The Union argues, that a "grievor's position is~ improperly
classified if it is not placed in the highest classification in the
system hierarchy to which his work, measured against the work of
employees whose positions are in related classifications, entitles
him." (Beals & Cain, supra). .If the work is done half the time
by a C02~, then the CS2 is entitled to th~ same classification as
the CO2. Similarly, ~n order to respect the proper' internal
integrity and hierarchy of jobs, a person supervising certain
classifications should be classified higher than them. (Anstett
and HeSlinqa, supra).
The Employer argues that a lot of temporary work doesn't make
a full-time position. Pursuant to the collective agreement, when
a higher-paid 'classification replaces a lower-paid classification
on a temporary basis, he is entitled to retain his higher pay, but
performs the job duties of the lower classification. If there had
been a real vacancy here it should have been posted, and was not'
and no grievances arose out of the lack of posting. These were
truly temporary, albeit substantial, replacements, sporadic in
nature to a large degree. All of the cases cited by the Union
dealt.with permanent assignments and permanent job duties and can
have no application to a temporary situation. When Mr. Kirby is
~upervising the C02 he is really supervising a CS2, as it is those
duties that the incumbent is performing. With respect to the
eqUities the Employer points out that it would be grossly unfair
to allow Mr. Menarik to take advantage of his own absences and
claim the' pay of a higher classification simply because a high'er
paid perso.n filled in for him. Similarly Mr. Kirby's case is based
Upon the assumption that Mr. Menarik should be reclassified to C02
and hence he should be classified at the C03 level by reason of' his
supervising a C02.
We accept the Employer argument ~nd. dismiss these grievances.
The next grievance is that of Mr. Tompkins, who was a'Clerk
Supply 2 at the Barrie Jail in June 1988, when he filed .his'
grievance. He left his job in July 1989 so is not requesting a
retroactive reclassification, but requests'retroactive compensation
in the amount of the difference b~tween his salary rate and that
of an Industrial Officer 1 during the relevant time period. Mr.
Tompkins compares himself with Laundry Officers in other
correctional institutions, who are classified at the Industrial
Officer l'level.
Barrie is a small jail and the laundry, consisting ~of two
washers and two dryers,.is located in the. stores area. A Clerk
Supply 5 was in charge of the stores and laundry area and Mr.
Tompkins worked part-time, twenty-four hours a week, mainly looking
after the laundry. In July, 1989 he was declared redundant and not
replaced. Now the clerk Supply 5 runs the stockroom and laundry
alone. Mr. Tompkins' job specification requiredhim to work eighty
percent of his time in stores and twenty percent of his time in
laundry, but Mr. Tompkins testified that he spent the largest
majority of his time supervising two inmates who did the laundry.
22
Mr. Tompkins and the inmates also assisted in the stores, area when
needed, and he would take over the CS5's duties when he was absent.
Inmate clgthing is stored in the laundry room and is continually
recycled through there. The Barrie Jail has an inmate population
of about 110, and their laundry is done here, as well as the
laundry of up to sixty inmates~ who are engaged at an outside work
camp. The inmates employed in ~he laundry are on temporary absence
permits and the storekeepers are allowed to take 'them'outside the
institution when needed. The inmates, under the direction of Mr.
Tompkins, would sort the 'dirty laundry and put it into the
machines. The machines are operated by a computer card so the
inmate would simply put the card in the machine, turn a_handte and
push a button. Detergents and chemicals are pumped into the
machine autOmatically pursuant to the .carded instructions. The
dryer~ are simple industrial machines which must be swept Out every
day. After drying, the clothes must then be folded and stacked on
shelves. The inmates would regularly make up shower rolls for. the
prison population .consisting of underwear, socks and a t-shirt
wrapped in a towel. Mr. Tompkins would do any minor repairs to the
machines that he could handle himself and reques% an outside
contractor for major repairs.
Under cross-examination Mr. Tompkins testified that there is
no repair work done in the laundry, no laundry production records
are kept, no formal scheduling is done, and the only paperwork
involved was a record of blankets washed that Mr. Tompkins kept in
a notebook. ,
, 23
The Union called Mr. Di Poce to testify about the job of an
Industrial Officer '1, Laundry Officer, at the Toronto East
Detention Centre. It is his job that Mr. Tompkins compares himself
to from both a usage and'a class standards point of view. Mr~ Di
Poce works with a CO2 in the laundry and between the two of them
they supervise ten to twelve inmates operating four washers, six
dryers and one sewing machine for repairs. Mr. Di Poce is in
charge of the laundry and is paid more than the.C02 who assists
him. Like Mr. Tompkins, Mr. Di Poce and the CO2 trainthe inmates
to sort clothes. They pick up dirty laundry from the units and
distribute~clean laundrY on a one-forgone exchange .basis, 'with
their inmate helpers. 'Mr. Di 'Poce schedules the laundry,
requisitions supplies from the storekeeper and maintains a log book
for his schedules, but record-keeping for stock-on-hand is done in
the storeroom. Mr. Di Poce's laundry doesn't have presses or
extractors as set out in his job description; apparently they were
eliminated some time before 1986.. Mr. Di Poce doesn't do budgeting-
either, 'although apparently his supervisor, the Assistant
Superintendent, does the budget by simply tallying up Mr. Di Poce's
requisitions for'the previous year'and adding a certain percentage
for inflation.
The Employer called Mr. Callender to give evidence regarding
his job duties as Clerk Supply 5 at the Barrie Jail. He was a CO2
who was asked to'fill in for Mr. Tompkins in the stores and laundry
area in December 1988, while Mr. Tompkins was off sick. A few
months later the Clerk Supply 5 retired and Mr. Callender stayed
on to do his~job, eventually winning a job competition for it. Mr.
Tompkins was still off sick around this time. He didn't return
Until about the Spring of 1989 for a few weeks, and then he was
released. Mr. Callender now looks after.the stores and laundry by
himself with two inmate helpers. Basically he shows the inmates
what to do and leaves tkem to do it. He supervises them primarily
from his office, which has a large window looking into the laundry
room. On weekends the inmates do the laundry by themselves with
the Shift Supervisor~ having responsibility for them, but he does
not closely supervise them. Mr. Callender says it takes about ten·
· minutes to train a new inmate, but he always has one experienced
inmate working with a new one to assist in his orientation..
Apparently laundry is a favoured job for inmates and they are
anxious to do t%e job well in order to keep it.
CertainlyMr. Di Poce's laundry is run on a much smaller scale
than the Guelph Correctional Institution laundry. It has fewer
machines an·d no pillow-making operation, thus fewer opportunities
to train inmates in industrial skills. Nevertheless, Mr.· Di Poce
has~ full responsibility for the laundry and reports~ to' the
assistant· superintendent. He supervises a CO2 and ten to twelve
inmates. Mr. Tompkins was working under the general supervision
of a CS5 and shared supervision of two inmates with him. The
Barrie laundry is much smaller in scale than that at the Toronto
East Detention Centre and miniscule in comparison with the Guelph
Correctional Institute laundry. This difference is size is not
, 25
only quantitative, but qualitative. Basically the inmates learn
their tasks very quickly and get on with the work. If Mr. Tompkins
spent eighty percent of his part-time wOrk week in the laundry as
he says he did, it would seem .excessive in the circumstances and
not really required of him. Presumably the employer recognized
this when it declared his position redundant. The class definition
for Industrial Officer 1 requires that: "Employees in positions
allocated to this class instruct and direct an assigned group of
inmates in the processing in volume of various products, food,
clothing, and maintenance supplies at reformatories and industrial
farms. These duties do not require skills to the level Of the
designated trades. ~hey share responsibilities with their
supervisors, and with any custodial officers assigned, for the
security and work performance of inmate helpers. They insure the
observance.of sa.fety precautions, demonstrate methods, and assist
in maintaining quality control and in meeting production
schedules." We do not find in Mr. Tompkins job the instructional
nor volume requirements of the Industrial Officer class 1
definition. Moreover, the Clerk Supply 2 class definition
specifies: "This'is a terminal class for employees who perform in
a supply area, simple clerical duties' in conjunction with tasks
requiring the frequent application of considerable physical effort
or the operation of mechanical equipment." We, think this
definition more accurately describes the duties of Mr. Tompkins,
in part'icular where combined with the extra duties set out in the
custodial responsibility allowance requiring him to "direct inmates
engaged in beneficial labour."
Union Counsel compares the laundry operation at the Barrie
jail to the cannery operation run in conjunction with-a stockroom
in Smith, GSB 1461/88 (Devlin). In that case the grievor ran a
cannery operation where he instructed and directed eight or nine
inmates in a start-to-finish cannery operation where he was
responsible for maintaining quality control and meeting production
schedules. The Board made a Berry order requiring his
classification from the Clerk Supply 2 classification to some other
more appropriate'classification, while noting that because of his
stockkeeping duties he could not fit into the Industrial Officer
class standard. Again, we cannot see any ~qualitative or
quantitative comparison between the Barrie laundry operation and
the cannery operation' described in Smith. Accordingly this
grievance must fail. "
On the last day of our hearings', the Union withdrew the
grievance of Frank Wilcox at the Toronto East Detention Centre,'and
· called no evidence on the Vareta grievance from the same
institution, and so we dismissed that grievance as well.
Dated at Toronto this 9th day of Augusl, 1993.
A. Barrett, V'~¢e-Cha'irpe~son
J;CLaniel, Me. er
I. Cowan, ~e~er