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HomeMy WebLinkAbout1989-0488.Tsangarias & Young-Yuskiw.93-04-07 ONTARIO EMPL OY~'S DE LA COURONNE CROWN/:JMPLO YEE$ DE L 'ONTA RIO GRIEVANCE C.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS I$0 DUNDAS STREET wEsT, SUITE[ 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/T~L~'PHOalE; (4 ~6) 326-1388 780, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARtOJ, MSG IZ8 FACSIMli..E/T~L~COP,~E ~. (4 ~6) 326-1396 488/89, 490/89 IN THE I~TTER OF~.N~RB~TI~TION Unde~ THE CI~O~F~PLOYEE~ COLLECTIVE B~N~NG ACT Be~o~e BE~EN OPSEU (T~an~aria~/Youn~-Yu~ki~) Grievor - ~4- The Cro~ in Right of Ontario (Minist~ of Correctional Se~ices) ~mployer BEFOg: W. Kallan Vice-Chairperson I. Thomson Me, er F. Collict Me~er FOR THE V. Reaume UNION Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors FOR THE J. Benedict EMP.LOYER Manager Staff Relations & Compensation Ministry of Correctional Services HEARING May 1, 1992 January 28, 1993 Introduction By a grievance dated March 7, 1989, Emmanuel Tsangaris, and by a grievance dated April 1 O, 1 989, Genia Young-Yuskiw, both of whom are Cook 3s at the Toronto Jail, grieve that they are improperly classified, and by way of remedy seek either reclassification in the Industrial Officer series or a Berry Order. Ultimately, the request for reclassification in the Industrial Officer series was not strenuously pursued. The grievances proceeded to a hearing in Toronto, at which time evidence and argument were heard. It is useful to set out the relevant parts of the class series in dispute. PREAMBLE COOK SERIES Most of the positions covered by this series occur in an industrial setting where the kitchen is required to function over a period as long as from 4 a.m. to 11.30 p.m. or greater; 7 days a week; well in excess of an employee's normal working day. Thus some of the employees are required to work staggered hours which are referred to as "shifts". The term "shift cook" does not necessarily denote the supervisor of a shift, but rather a cook whose position requires that he begins and ends his work tour of duty at varying times of the day. While a longer work day or very large volume may require more complicated arrangements, the following is a typical shift arrangement:- Early Shift - 6 a.m. to 2.30 p.m. (1/2 hour lunch) Day Shift- 8 a.m. to 5.00 p.m. (1 hour lunch) Late Shift - 10 a.m. to 6.30 p.m. (1/2 hour lunch) In some kitchens one or more journeymen cooks open the kitchen in the morning; prepare breakfast and begin other cooking tasks, according to instructions and the menu; direct the activities of junior cooks, other kitchen help and such patients or inmates as may be assigned, without the presence of a supervising cook until the day shift comes on duty. Similarly on the afternoon shift they remain after the supervising cook or cooks have left and oversee and assist in the serving of the evening meal and the clean up operations thereafter. They may also begin preparation of the next day's meals. The bulk of the food service operation occurs during. the day shift when the main meal of the day and either "lunch" or "supper" are prepared. The supervising cook, or. his assistant, is normally present on the day shift and directs the production of these meals, makes any emergency changes required in the day's menu, ensures that supplies are requisitioned and delivered for the following day and issues instructions for the early and late shifts. Thus the regular direction of junior cooks, kitchen helpers and such patients or inmate help as is assigned, is an inherent responsibility of a journeyman level, or Cook 2, position. All employees in positions classified as Cook Z or higher in the series may be required to 'train and instruct junior cooks, kitchen helpers, patients, .inmates on wards in cooking, baking, meatcutting, kitchen operation, sanitation, food preparation and se.rving etc. Except for the substitution of patients or. inmates for some members of kitchen help, this responsibility has parallels in large volume, non-institutional settings and does not warrant the Cook 3 allocation, which covers the positions of group leaders of several cooks on a full time basis each day. In the Department of Reform Institutions provision has been made whereby employees in positions classified as Cook 2_ or higher in the series may, in addition, be required to appraise and report on inmates' or wards' adjustment, conduct and industry for Parole or placement purposes; to take responsibility for the safety and custody of the inmates or wards assigned to them and to warn in minor misconduct and lay major misconduct charges as required. For the purposes of this series, it is assumed that three meals are prepared for each person per day, except for meals served to institutional staff who normally are served only one meal per day. The number of' institutional staff served is pro-rated to arrive at the number of persons served e.g. 800 patients or inmates and 300 staff served equals 600+(1/3 x 300) or 900 persons. Supervisory levels in this series are distinguished, no___[t by the number of subordinates supervised, but by the size of the food services operation i.e. the number of persons served per. day. The number of patient or inmate helpers assigned to the kitchen tends to be dictated by a number of factors often completely divorced from the actual needs of the food service operations. Thus the number_ of patient or inmate helpers or the number of junior kitchen help is no__[t a factor in allocating positions in this series. An exception is the "group leader" or Cook 3, level, where more than one subordinate cook plus such other kitchen help as is required, must be supervised to establish a "group". Revised June 1, 1970 COOK 1 CLASS DEFINITION: In most positions allocated to this class the employees assist another cook, or cooks, in the preparation, cooking and distribution of a variety of foods served in a government institution. They receive training and acquire experience in volume cooking procedures and quantity control. They may be responsible for a specialized aspect of food preparation but seldom for the complete production of meals. These employees participate in any of the food preparation and cooking operations and may also take part in butchering, baking, preserving and apportioning of food. They may store, measure and assemble ingredients, and distribute meals to dining areas. They may themselves, perform or give directions to assisting staff and patients or inmates, in such tasks as vegetable preparation, food serving and the cleaning of utensils and work areas. In a few positions allocated to this class, the employees independently prepare meals for a very small group and, in addition, undertake other handy-man chores and/or housekeeping duties as required. Revised February 1966 CC K Employees in positions allocated to this class,, as journeyman cooks, prepare and cook a variety of foods served in a government institution or similar organization. They prepare complete meals according to approved menus and work sheets and may on occasion, have to make alterations or substitutions for items scheduled but not immediately available. They ensure that food is properly cooked and distributed according to schedule and that proper cleanliness of the kitchen equipment and premises is maintained. They may be required to instruct and supervise junior cooks and other kitchen personnel including such numbers of inmate or patient helpers as may 'be assigned. In some positions these employees are responsible to the administrative officer of a small organization or institution, for all the food services for up to 40 persons, including the direction of assistants, kitchen helpers, patients or inmates. In other positions in this class~ the employees may act as . assistant to a supervising cook or dietitian in kitchens serving meals fOr 40 to 100 persons. In all positions in this class, in the absence of the supervising cook or dietitian, these employees may be in charge of a shift or part of a shift. Revised February 1966 COOK 3 Under the instruction of a supervising cook or dietitian, employees in positions allocated to this class supervise the production of meals in a government institution as group leader of a small number of subordinate cooks~ other kitchen help and such numbers of patient or inmate helpers as may be assigned. They usually work on a shift basis using prescribed menus and work sheets and, in the absence of the supervising cook or dietitian, may be required to make substitutions or re-arrange r~enus to cope with temporary shortages, late deliveries or other problems. in food service operations providing meals for 100 to 300 persons they assist the supervising cook or dietitian in charge, direct and check the work of subordinate cooks, kitchen assistants and patient or inmate helpers and take charge of the kitchen during normal absences of their supervisor. In some positions, in a kitchen unit serving a similar number of persons and physically remote from the central kitchen, these employees are responsible for the discipline, cleanliness and economical meal production of all meals on all shifts. In other positions employees in positions in this class are responsible to an administrative officer for the operation of food services on all shifts in an institution usually feeding from about 40 to 100 persons, in these positions they prepare or adapt menus, requisition supplies, arrange work assignments and cooking duty schedules and assume over-all responsibility for all the food services of the institution. In all positions, as authorized, they prepare supply requirements; keep provision records; maintain time schedules; order repairs and replacements to equipment and they maintain proper standards of sanitation. January 27, 1966 The Evidence Mr. Tsangaris testified on behalf of himself and Ms. Young-Yuskiw. Mr. Tsangaris began work with the Ministry in March 1976 as a casual cook. He has been a Cook 3 since January 1 980. At the time of the grievance, Mr. Tsangaris worked with three other Cook.3s: the other grievor, Mr. Allan Patrick and Mr. Tim Cook:~.., -~ .. Mr. Tsangaris described his duties and responsibilities. He supervises. inmate helpers. The first group of helpers arrives at 5:00 a.m. and works until 12:$0 p.m. The second group of helpers arrives after lunch and works until 8:00 p.m. Approximately twelve helpers assist the cooks on'each shift, and there are two cooks per shift. The cooks rotate shifts bi-weekly, in general, working 5:00 a.m. to 1:00 p.m. for.two weeks and 12:00 p.m. to 8:00 p.m. for two weeks. Once in a while the cooks are required to work the 10:00 a.m. to 6:00 p.m. shift. When the cook working the 5:00 a.m. to 1:00 p.m. shift arrives at work, he or she picks up the keys from the control room that open the elevator, the kitchen, the fridges and the store areas. The cook then goes' to pick up the i'nma.tes, who were previously assigned to kitchen duties. 'Mr. Tsangaris testified that he and the other cooks are involved in the selection of these inmates. Sometimes, the cooks know particular inmates and ask that they be assigned to the kitchen, and other times the Classification Officer, who was Mr. Patrick .Wan at the time the grievances were filed, consults with. the cooks about who would be appropriate for kitchen work. Mr. Wan may ask the cooks how different inmates are working out, and if the inmates get good reports from the cooks they may earn certain privileges referred to as preferrals. If an inmate is not performing to specification, is lazy or uncooperative, then the cOok may fill out a form indicating this. The cooks can charge an inmate with misconduct, and if they decide to do so the appropriate form must be filled out. As soon as an inmate is charged with misconduct, Mr. Tsangaris notifies the supervising sergeant, as well as the Food Services Manager. The inmate is immediately removed from the kitchen. If an inmate is injured on the job, another form must be filled out. In general, after picking up the inmates in the morning, the cook escorts them to the kitchen, and soon thereafter everyone begins to work. Mr. Tsangaris testified that he and the other cooks teach or have taught the inmates how to make coffee and tea, how much milk, cereal and other breakfast foods to put out, how to cook bacon and how to fry eggs. Sometimes the cooking instruction is more complicated. Mr. Tsangaris testified that the cooks teach inmates to prepare meals such as beef stew. When doing so they instruct them in how much beef is required, the appropriate spices and types of vegetables, how to thicken the stew, what temperature to cook it at, and for how long. Inmates are also taught how to bake cookies and other products. Mr. Tsangaris'testified that as a result of this instruction a number of inmates have subsequently been hired as' cooks. The number of meals required is indicated on a wall chart. The Torohto Jail houses approximately 600 to 630 inmates, and so some 600 breakfasts are prepared each morning, although this number may vary depending on the number of inmates who arrived during the night. Approximately 100 breakfasts are specially prepared for inmates attending court. Other special meals include staff meals for correctional officers working overtime or escorting inmates to hospitals. A document prepared by the Food Services Manager at the time the grievances were filed and introduced into evidence indicates that more than ten thousand special meals were prepared each month. For example, this document indicates that 35 diabetic meals were prepared daily, 30 gastric meals, 12 Iowfat meals, 12 soft meals, 120 no-pork meals, 150 vegetarian meals, 12 liquid meals, TO '9 kosher meals and 10 "other" meals. When. preparing these special meals, Mr. Tsangaris testified l~hat the cooks also provide the inmates with cooking instruction Even before the breakfast is prepared, the cooks begin work on dinner and lunch, inmates continue to assist them, and approximately 600 inmate meals are prepared for lunch. Approximately 650 dinners are prepared, and sometimes it is closer to 700 meals. Some staff meals, approximately 40, are also made. The Jail Superintendent and Jail doctor 'are entitled to eat for free. Correctional Officers working overtime are als0 entitled to a meal, and other staff can purchase meal tickets. An evening snack is also prepared consisting of cookies, fresh fruit, coffee, tea or milk. Approximately 700 snacks are prepared each night. Some special meals and snacks are' also prepared for guests at the jail and for meetings being held there. Around 1 ;~:30 p.m. the first, shift of inmate assistants is returned to their cells, and the second shift is brought down. One of the Cook 3s escorts the inmates up and down. After the meals and the evening snack are prepared, the cooks search and then fill the food and beverage wagons prior to leaving the kitchen area. No correctional officers are involved in this search. 'The cook must sign a sheet stating that he or she has completed the search, These forms are picked up daily by the .lail's security officer. The cooks are also responsible for filling out a log. The correctional officers then take the wagons out onto the floor after double checking the number of meals 'prepared with the number of meals required. Another form is filled out recording this count. Unlike breakfast, lunch and dinner, the' evening snack is distributed by one of the cooks and an inmate assistant. The cook and inmate are not escorted as they perform this task. The cooks are also responsible for filling out a number of other forms. One of these forms details the whereabouts of knives and other kitchen implements. The cooks must ensure that these items, as well as ordinary eating utensils, are carefully monitored. At the time these grievances were filed Mr. Jim Henry was the Jail's Food Services Manager and Mr. Wes Nesbitt was the Assistant Food Service's Manager. Mr. Nesbitt is now the Food Services Manager. The position of Assistant Food Services Manager was not filled after Mr. Henry left and Mr. Nesbitt was promoted. Mr. Tsangaris testified that Mr. Henry worked flexible hours, generally 9:00 a.m. to 5:00 p.m., and Mr. Nesbitt generally worked 10:00 a.m. to 6:00 p.m. Mr. Henry did not work on the weekends, and Mr. Nesbitt only worked on Sundays. All the Cook 3s at the Jail worked weekends. Before the Food Services IVlanager arrives in the morning, and for at least one day on the weekend and part of the other, there is no member of management working in the kitchen. Mr. Tsangaris testified that neither the Food Services Manager nor his assistant (when that position is filled), are involved in meal preparation or inmate supervision. Their duties include menu planning, ordering and taking meats out of the freezer as required, From time to time, however, the Food Services Manager and his assistant would come into the kitchen and ask questions. If Mr. Tsangaris had a big problem like the shortage of an item required or serious inmate misbehavior or an inmate riot he would bring it to the attention of the Food Services Manager. In general, however, Mr. Tsangaris attempted to resolve any problems himself. Mr. Tsangaris reviewed his position specification with the Board, and testified that he did. not agree with that part of it describing his workload, and further documentary evidence detailing the number of meals and. snacks prepared each day was introduced into evidence. The Position Specification indicated that Mr. Tsangaris and the other cooks were responsible for preparing 2_100 meals and snacks a day, but Mr. Tsangaris testified that the number was, in fact, higher than this. Mr. Tsangaris testified that while the position specification indicated that he was involved in ordering bulk products, he also ordered food as required, such as when 'there was a. shortage of items He also testified that he assumed the duties of the Food Services Manager when the Manager was away from the Jail on vacations and for other reasons. Moreover, for those time periods when neither the Manager nor his assistant was in the Jail, he and the other cooks were 100 percent responsible for all supervision, and they did everything that needed to be done. Mr. Tsangaris was asked a number of questions in cross-examination. He agreed that generally the inmates at the Toronto Jail are low security risks, although the jail has held murderers, and one of these murderers once worked in the kitchen. Mr. Tsangaris testified that approximately five- years ago an inmate punched out the Food Services Manager. Mr. Tsangaris testified that if he did not want a certain inmate to work in the kitchen, he would make his wishes known and that inmate would not be assigned to kitchen duties. Mr. Tsangaris knows about half of the inmates who end Up working in the kitchen from their previous stays at the jail. Mr. Tsangaris reiterated his earlier evidence that he is consulted about their selection although Mr. Wan was the person actually responsible for choosing them. Mr. Tsangaris was asked about his rote in searching the food wagons, and he testified that the security officer comes in ..from time to time to pick up the forms. If Mr. Tsangaris had a big security problem he would bring it.to the security officer's attention, but he rarely has any problems that he cannot resolve on his own. When the grievances were filed Mr. Tsangaris's supervisor worked in an office that did not allow him to see what was going on in the kitchen. In the evening, the cook delivers the snacks to various landings where they are passed on the correctional officer on duty who serves them to the inmates. Mr. Tsangaris agreed that his cooking instruction did not involve any classroom time. Rather, it was on-the-job training. For example, the cooks teach the inmates how to use knives, how to use the'chopping machine, the dishwasher, the mixing machine and the coffee machine, and after a week or so the inmates know what to do. Generally, the inmates do. the "muscle work" in the kitchen. Mr. Tsangaris was asked about his involvement in granting preferrals, and he agreed that his input was verbal, but he insisted that he and the other cooks were consulted because they work' shoulder to shoulder with the inmates. Mr. Tsangaris further testified that the cooks can cite inmates for insubordination. With respect to ordering food, Mr. Tsangaris agreed that he did not order it very often, and that most ordering was done by the Food Services Manager. Mr. Tsangaris would do it if the Food Services Manager was away or if he ran out of an item. In re-examination, Mr. Tsangaris elaborated on his role in filling out the search forms for the food wagons. He testified that he and the other cooks have found things on the wagons that should not be there. And when such things are found, mention of them is made in the search report. Mr. Tsangaris agreed that, in general, his input about preferrals may be 13 communicated to Mr. Wan through the Food Services Manager or his assistant, or Mr. Tsangaris cold speak directly with him. Mr. Tsangaris has also served on the Board for pre-releases. The Cook 3s could be called upon in this capacity as often as once per month. With respect to cooking instruction, Mr. Tsangaris testified that sometimes an inmate only needs to be shown how to .do something once. However, the tasks assigned to the inmates will vary depending on their knowledge and abilities. Mr. Wes Nesbitt testified on behalf of the employer. Mr. Nesbitt is the Food Services Manager at the Toronto Jail, and has held that position for three years. Prior to becoming Manager he was the Assistant Manager for twenty-five years. He has also worked as a correctional officer. Mr. Nesbitt oversees the overall operation of the food services department'. Mr. Nesbitt is responsible for ensuring that the food in the jail is properly prepared and served. He testified that the Toronto Jail houses on average, 500 inmates. Approximately twelve inmates work on each shift, and Mr. Nesbitt testified that their job is general labour and housekeeping. He does not have any expectation that they will learn anything, and he does not believe that they will acquire anything but minimal skills as a result of their assignments in the kitchen. Mr. Nesbitt testified that the inmate helpers are not allowed to use the meat slicer, because they might show favouritism by slicing portions that were too large. Conversely, they might skimp on portions for fellow inmates they disfavoured. The inmates do not have any keys, and in his opinion, they do very little cooking. Once in a while the kitchen gets an inmate with some baking skills, and when this occurs that inmate may be assigned more complex tasks.' Otherwise, all the inmates do is help the cooks and serve the meals. By helping the cooks, they may be called upon to grill hamburgers or pork chops, but will not be given cooking assignments that are more complex than that. Mr. Nesbitt. testified that if the jail did not have a pool of inmate workers it would have to hire a lot of employees to do housekeeping, porting, and cleaning. Mr. Nesbitt testified that the cooks follow the menus assigned by the Ministry of Correctional Services. Mr. Nesbitt writes the daily menus within the Ministry's general dietary framework. If Mr. Nesbitt is away and the cooks run out of some item, they have the authority to substitute another one. This might happen once or twice per month. If some major cooking decision were required, Mr. Nesbitt would expect the cooks to contact him. A major food problem could occur if it was learned, for example, that something was contaminated. Mr. Nesbitt testified that there has not been a major problem for at least fifteen years. Mr. Nesbitt also testified that the cooks have no authority to arrange for supplies, and that all supplies come from the store room at the jail. if Mr. Nesbitt is not around, and ordering is required, it is done by Mr. Patrick who has been given the authority to order. Mr. Patrick is another Cook 3. He is not a grievor in this case. Mr. Nesbitt testified that the grievors only have minimal responsibility for keeping records of supplies that are used, and by and large, Mr. Nesbitt performs this function. When he is away, the grievors do it. With respect to repairs, Mr. Nesbitt testified that the grievors notify him if any are required. If something needed to be fixed right away, they would probably contact the maintenance department. At the time of the grievances, the grievors supervised two Cook Zs. 15 In cross-examination, Mr..Nesbitt agreed that he is not a dietitian, nor is he a certified cook. Mr. Nesbitt agreed that while there were both Cook 3s and Cook Zs on duty in 1989, it would be the ,Cook 3s who would most closely supervise the inmate helpers. Mr. Nesbitt testified that when he WaS there he kept a fairly close watch .on what was going on. tvlr. Nesbitt was asked about some of the cooking chores that .the inmates perform, and he insisted that these chores, like grilling meat, were menial. He did not agree that grilling meat constituted cooking, and. the same held true, in his view, with respect to frying bacon and eggs. Mr. Nesbitt agreed that there were generally more than 500 inmates housed in the Jail at the time the grievances were filed. A document was introduced into evidence' that indicated that that number fluctuated considerably. For example, on January 6, 1989 there were 455 breakfasts and 557 suppers prepared. On January 30, 1989, there were 623 breakfasts and 543 suppers prepared. On April 3, 1989 there were 649 breakfasts and 574 suppers. On April 14, 1989 there were 530 breakfasts prepared and' 571 dinners. Mr. Nesbitt agreed that there was considerable overcrowding in ~the jail during this period. Not reflected in these figures are the number of staff meals, which Mr. Nesbitt estimated would have been:less than fifty per day. ~lr. Nesbitt reiterated his evidence in Chief that the kitchen would have to hire additional staff if there were no inmates available to work. He agreed that the grievor's position specification was generally accurate, but he did not agree with Mr. Tsangaris's evidence that the Cook 3s played a role in selecting inmate assistants. In Mr. Nesbitt's view, the Cook 3s had nothing to do with that, and to Mr. Nesbitt's knowledge, Mr. Wan did not consult with 16 the cooks as he went about performing this selection task. At most, Mr. Nesbitt testified, one of the cooks might have said to Mr. Wan that they knew a particular inmate from previous experience and may have requested that inmate for the kitchen because of that previous experience. Mr. Nesbitt agreed that when he was away the Cook 3s performed his supply record-keeping function. He also agreed that in his absence the Cook 3s would assume responsibility for any maintenance problem that might arise. The evidence having been completed, the case proceeded to argument. Union Argument Counsel began by observing that the parties were agreed that the grievor's position specification was generally accurate in its description of their duties and responsibilities. The evidence was also clear that the number of inmates in the jail fluctuated. It went as high as 700 inmates per day, and counsel noted that the grievors were responsible for preparing three meals a day for these inmates as well as a snack. Moreover, the grievors were also responsible for preparing special meals and meals for correctional officers working overtime or who purchase meal tickets. In counsel's view, there was little doubt but that the grievors were cooking well more than 21 00 meals per day. The evidence was equally clear, in counsel's submission, that the grievors were the cooks primarily responsible for the supervision of the inmates, and counsel noted that Mr. Nesbitt had agreed with that. in counsel's view, the'evidence established that the Cook 3s were training the inmates in cooking, and that those inmates were not simply performing manual labour. Counsel pointed out that Mr. Tsangaris testified that he taught the inmates 17 ..~ how to grill, but he also taught them how to season and perform other cooking tasks. In counsel's submission, this teaching amounted to training. Counsel also argued that the grievors had a number of important and unrecognized responsibilities such as for' the care and custody of knives, the performance of security checks, the laying of misconduct charges and the selection of inmates for kitchen work. Counsel also noted that the grievors 'exercised supervisory responsibilities on those occasions when IV]r. Nesbitt was not on shift, or when he was away for a more extended period. Counsel pointed out that the grievors did not work under the supervision of a dietitian or a supervising cook. Counsel referred to the preamble of the Cooks Class Series as well as to the standard for Cook 3. Counsel pointed out that there was no denying that the grievors were. cooks. There was also no denying that they did not fit within either the Cook 1 or the Cook 2_ standard. The Cook 1 series is very junior, while the Cook 2 series is for "journeymen" cooks, which the grievors dearly were not. Counsel pointed out that the preamble to the series contained a formula for the calculation of the number of persons served each day, and this preambte made it clear that this is the key factor in the determination of supervisory levels. Assuming in the instant case an inmate population of 600 inmates and sixty.staff, that wou~d result in 6?_0 people served daily (600.+ (1/3 x 60) = 620). Counsel noted that this figure was in fact a conservative one given the evidence of numbers of inmates and overcrowding in the period prior to the filing of the grievance. . Focusing in on the number of person served, counsel noted that the Cook 1 series was silent about the number of persons served, reflecting perhaps the junior nature of the position. The Cook 2 standard referred to situations where the cooks would prepare meals for 40 persons or for between 40 and 100 persons. The Cook 3 standard, however, referred to incumbents occupying positions where they were involved in the preparation of meals for either 1 O0 to 300 .persons or in the preparation of meals for 40 to 1 O0 persons. On the evidence, counsel argued, this standard could not apply to the grievors since they prepared meals for a minimum of 62_0 persons. Moreover, the Cook 3 standard stated, with respect to the preparation of meals for 100 to 300 persons that they "assist the supervising cook or dietitian in charge" and counsel noted that there was no cook or dietitian in charge, and that the grievors were themselves in charge, reporting only to the Food Services Manager. In counsel's view it was obvious that the grievors were not occupying the second type of position where they prepared meals for 40 to 1 O0 persons. Counsel was asked by a member of the Board whether the number of Cook 3s working in an institution was relevant to the applicability of the standard. For instance, could it be argued that if one Cook 3 was preparing meals for 100 to 300 persons and was properly classified, then if there were two Cook 3s, working side by side preparing meals for 2_00 to 600 persons they would also be properly classified. Counsel argued that this clearly was not the intention of the provision. Referring back to the Preamble, counsel emphasized that nowhere does the class series make this kind of distinction and, in fact, the significant feature that it does identify is the number of persons being served. Counsel also pointed out that even if this interpretation was correct, the grievors would still not be properly classified for they did not assist a supervising cook or dietitian, and they were, on the uncontradicted evidence, responsible for preparing meals for more than 600 persons a day~ Employer Argument Mr. Benedict began his submissions by pointing, out that the union has the onus of establishing that the grievors are improperly 'classified, and in. his view, the union had failed to discharge its burden. In support of various submissions that he made, Mr. Benedict referred the Board to a number of cases including _Baraund et al 39/89 (Slone), Ferris 1937/89 (Verity), Ennis, Schuler 17/85 (Kirkwood), Edwards/Maloney 11/78 (Swinton), Elrick et al 10/85 (Dissanayake), Evans 1531/90 (Samuels), Ackert 559/90 (Keller) and Jalea/Green 1052/89 (Low). Mr. Benedict argued first that the grievors should not be reclassified in the Industrial Officer series, and he cited the Baraund et al decision as a relevant case on point. That case concerned the classification grievances of a number of cooks at the Burtch Correctional Centre near Brantford who alleged that their jobs had evolved to the point where they were no longer merely preparing and serving meals at the institution, but were training and supervising inmates in those tasks. The union argued that this change in emphasis took the grievors out of their assigned classification. After considering the evidence, including evidence of inmate kitchen assistance, the Board in Baraund et al concluded that "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 and3 jobs. The additional responsibility for inmates is precisely the added component that the CRA was designed to cover" (at 27). Accordingly, the grievance was dismissed, and Mr. Benedict urged the Board, for the same reasons, to dismiss the instant case. Mr. Benedict argued that the grievors' primary responsibility was the preparation of meals, and that the Cook 3 class standard recognized that primary responsibility. Supervision of inmate assistants was part of their job, and it was recognized in the class standard. Mr. Benedict-referred to Mr. Nesbitt's evidence that the inmates performed meniat chores, and that they did not receive any significant cooking instruction. In addition, ~Ir. Benedict pointed out that the grievors' also received the Custodial Responsibility Allowance. in Mr. Benedict's submission, the two employment situations described in the Cook 3 standard were indicative and not exhaustive. In the alternative, if the Board found that they were exhaustive, the grievors were still, in his view, properly classified and the argument could be made that by having one . Cook 3 for each 300 meals the requirements of the standard were met. in conclusion, Mr. Benedict argued that not only had the grievors failed to prove that the Industrial Officer series was a better fit, they also failed, using a standards approach, to discharge their burden of proving that their assigned class standard did not accurately describe their duties and responsibilities. Those duties and responsibilities were to cook meals, the grievors were cooking meals and they were, in Mr. Benedict's submission, properly classified. Decision Having carefully considered the evidence and arguments of the parties, we have come to the decision that this grievance should be upheld. We reach this decision on the basis of our finding that the wording of the Class Standard for Cook 3 does not accurately or satisfactorily describe the grievors' duties and responsibilities. The Preamble to the Standard makes it clear that the number of persons for whom meals are prepared is the key factor in determining placement in the series. On the evidence before us it is clear that at. the relevant time, the grievors were responsible for preparing meals, for'significantly more persons than those contemplated at the Cook 3'level. The fact that there were two Cook Ss assigned to each case does not, in our view, meet the requirements of the standard. How many cooks are hired at any institution is a management decision. What the standard seeks to accomplish is to recognize responsibility at different levels. Obviously, there is greater responsibility if one must cook for 600 or more persons than if one must cook for 100 to 300 persons. The number of cooks.is not the issue as' employee complement is a matter for management to decide. Clearly the grievors are not Cook is or Cook 2s. They are also not Cook 3s, and another reason for this finding is that the Cook 3 series contemplates cooks working in either of two situations: "In food service operations providing meals for 100 to 300 persons they assist the supervising cook .or .dietitian' in charge...", or "in other positions employees in this class are responsible to an administrative officer' for the operation of food services on all shifts in an institution usually feeding from about 40 to 1 O0 persons." We find that the grievors do not "assist the supervising cook or dietitian in charge" because there is no such person. We also find that while the grievors do report to a Food Services Manager, who clearly occupies a position included in the description of an "administrative officer", the fact that the number of meals in this second category is so Iow, as compared to the number of meals that the grievors prepare, this part of the class standard also does not apply to them. The remainder of the Cook 3 standard sets out the various cooking and associated duties cooks in government positions perform, and generally describes the kind of work that the grievors do. But this general description of cooking work does not encompass the work of the grievors because the standard explicitly identifies the two types of positions held by Cook 3s and neither of them can be fairly applied to the grievors. Having so found it is not necessary to deal at any length with the evidence about the training Mr. Tsangaris testified that he and the other grievor performed. Suffice it to say that the evidence on this point was contradictory, but even taken at'its best, it was insufficient to justify a finding that the grievors should be reclassified in the Industrial Officer series. Accordingly, that claim is dismissed. Moreover, that evidence about cooking instruction, along with the evidence of the incidental security duties performed by the grievors, is not sufficiently probative or persuasive to justify a Berry Order in and of itself. A Berry Order can, however, be justified by an analysis of the Cook 3 standard itself, and our decision to grant one in this case is based on our finding that that standard does not sufficiently or accurately describe the grievors' duties and responsibilities, and in particular, their responsibility to prepare a large volume of meals and to do so in the absence of a supervising cook or dietitian. Very simply, the evidence establishes that at the relevant time, the grievors were responsible for the preparation of meals for at least 600 persons a day, and that this important factor was not recognized in their assigned class standard. Accordingly, and for the foregoing reasons, both grievances are upheld and a Berry Order granted. We remain seized with respect to the implementation of this award. DATED at Toronto this ?th day of Ap=it 1993. Wiliiarn Kaplan Vice?,Chairperson _,~ .~p. (~ I._.~/Thomson Member ~emb~ ADDENDUM (TSANGARIAS/YOUNG - YUSKIW) G.S.B. ~188/89; #490/89 This Member is in agreement with this award. The class standard for the Cook Series has served the Employer well for almost thirty years. However, as stated at pages 20 and 21 of the award, "...the wording of the Class Standard for Cook 3 does not accurately or satisfactorily describe the gri. evors' duties and responsibilities." Clearly, the numerical references to numbers of meals served is not clear in the standard as related to numbers of Cook 3 employees required in an institution; and as stated at page 22 of the award, it is not clear as to the responsibility level of Cooks who are, "...to prepare a large volume of meals and to do so in the absence of a supervising cook or dietitian." Basically, the position of "Cook" within the Cook Series has remained essentially unchanged Over the years. Accordingly, a complete re-write of the class standard, in the view of this Member, is unnecessary. A reference to the reasons for this subject Berry award, should make it clear to the parties that a minimal revision to the existing class standard is required. F.T. Collict _ Date