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HomeMy WebLinkAbout1989-0949.Bearss.90-11-30 ONTARIO EMPL 0¥~'S DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREE"T WEST, SUITE 2100, TORONTO, ON'i'AR[O. MSG 1Z8 TELEPHONE/T£L£PHONE,. (4 ;6)326-1388 18@, RUE DUNDAS OUEST, BUREAU 2~00o TORONTO (ONTARIO). MSG IZ8 FACStMtLE/T~L~CORIE ,' (4 ~6) 326-1396 949/89 iN THE MATTER OF ANARBITBATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINZNG ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bearss) Grlevor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson J. Carruthers Member D. Walkinshaw Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors' FOR THE P. Pasieka EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: April 11, 1990 DECISION The grievor, Mr. Glenn Bearss, is employed at the Elgin-Middlesex Detention Centre in London, Ontario. His position is classified as Maintenance Mechanic 2 (MM 2). He grieves that his position is improperly classified and seeks reclassification as. Industrial Officer 2 (IO'2). Alternatively he seeks a direction that he be properly classified. The class standards for the' MM 2 and IO 2 classifications are attached to this decision' as Appendices "A" and "B" respectively. Elgin-Middlesex Detention Centre, as its name implies, is a detention centre as opposed to. a .correctional institution. Unlike a correctional institute which houses convicted inmates serving sentences, the detention centre is primarily a holding facility for inmates awaiting trial or awaiting transfer. to a correctional facility or federal penitentiary. Therefore the inmates are not long-term and the centre does not maintain long-term rehabilitation programs, industries, schools or treatment centres. The grievor possesses a diploma in agricultural. science from the Agricultural College of Ridgetown (1968) 3 and is a graduate' of the Electronic and Computer Programming Institute in London (1970). He is also a licensed Millwright. He commenced employment at the Elgin-Middlesex Detention Centre on January 4, 1988 and has been classified as a M~ 2 throughout. The thrust of the Union's case is that the grievor spends a substantial portion of his time on farming and gardening duties which are not contemplated by the MM 2 class standard and that therefore he is improperly classified. On the other hand, the Union submits that the grievor's duties fit well within the IO 2 class standard. Is the MM 2 classification improper The first issue'to be determined by the Board is whether the grievor's position is improperly classified as MM 2, because if it is found that MM 2 is a proper classification, that ends the inquiry and the grievance must be dismissed. The Union contends that MM 2 is not a proper classification because for it to be so the grievor "must be engaged in maintenance work for at least 60%" of his work time. It is the Union's position that the grievor does not engage in maintenance work to that extent. 4 The .Employer on the other hand contends that he does. Counsel submits that "maintenance work" includes not only maintenance work performed inside the detention centre buildings but also maintenance work performed outside. The Board's attention is drawn to the phrase "semi-skilled handyman duties ... in the field" in the MM 2 claSs standard. The grievor testified about the duties performed in his position through the year. However, he had not worked as MM 2 through a full year. He had been a MM 2 from January 1988 to February 1988 and from october 1988 to June 1989. Therefore he had not been a MM 2 in the summer months July, August and September. However, during these months he was acting as MM 3 and observed the daily duties performed by the employee who replaced him as MM 2. Counsel for the Employer submits that the Board should ignore the grievor's evidence as to MM 2 duties performed in the summer months because that evidence is "hearsay". We disagree. We find that the grievor's evidence as to what duties were performed by the employee who replaced him to be reliable because he was testifying from his personal observation. While he may not have observed every duty performed by that employee, his general evidence is reliable. If the 5 Employer disagreed with that evidence, it was open to it to lead contrary evidence. The grievor testified about his own experience in the periods he performed as MM 2. He agreed that during January and February 1988, he was engaged in inside maintenance work 60% of his time. The balance of the work was outside work, mainly snow removal. In October 1988, he spent 2-3 weeks harvesting the crops that had been planted in the spring and cleaning up and doing some fall ploughing. The rest of October and November, the grievor cleaned and put.away the lawn mowers and other gardening equipment and also erected shelving for winter storage. In December L1988 and January, February and March 1989 the grievor was engaged in inside maintenance. work except when he was removing snow. In March 1989 he also made a steel safety railing, and also had discussions with his supervisor as to what crops will be planted in the 1989 season and what equipment would be needed. The grievor testified that in April inside maintenance work was minimal. The bulk of his time was spent at the outside grounds maintenance shop getting the garden equipment ready for the coming season cleaning up the grounds and driveways. In late April or early May, the grievor commenced preparing seed beds and planting seeds and also commenced mowing the grass. In May the 6 planting and mowing duties continued. In June most of his time was spent in gardening, type duties, mostly' mowing lawns. The grievor testified that from April on his inside maintenance duties were minimal. From his observations, the grievor testified that the employee who replaced him as MM 2 spent most of his time in the summer performing gardening and forming duties. The Board heard evidence that 90% of the time, the grievor had inmate helpers with him. This included both his time spent on' inside maintenance as well as his gardening duties. When he logged out inmates he had responsibility for their safety and security. The evidence indicates that the grievor was required to train the inmates on the safe and proper use of equipment and how to perform minor repairs. On inside work the training related to how to mix paint, use of cleaners and oil bases, how to change light bulbs and unplugging clogged sinks, removing doors and use of ladders. If he was working in the weld shop he may show an inmate how to use a welder. When on garden duties, the grievor taught inmate helpers how to weed and prune trees and how to use equipment such as tractors, ploughs, rotor tillers, lawn mowers and weed-eaters. The grievor agreed under cross-examination that these duties were not sophisticated or difficult and did not require much 7 training. Much of what the inmates did was labour incentive. The trgining mostly pertained to safety procedures as opposed to training in trade skills. The evidence indicates that the grievor had responsibility for maintaining the Detention Centre's grounds which was about 25 acres in.total. About 15 acres were lawns and 5 to 8 acres was a garden which was farmed annually with a variety of crops. The grievor had responsibility for cleaning and mowing the lawns and generally maintaining the grounds. He also had responsibility for the operation of the vegetable garden. The production report for the vegetable garden for 1989 was filed in evidence. The project is intended to be a self-sufficiency programme, in that the great majority of the produce is used to feed inmates and staff of the detention centre itself. In 1989 the crops had a. planned value of $ 11,041.00 but yielded only $ 2,782.'20 worth of produce due to crop failure. Since the cost of production was $ 3,755.17 there was a net loss of approximately $ 1,000.00. The total meal cost~ for the detention centre exceeds one million dollars annually. Therefore'the contribution from the farming project towards self-sufficiency is insignificant. The Board heard evidence about the designation of the MM 2 classification for the grievor's position. When the Elgin-Middlesex D~tention Centre was established in the early 1970's it was located in "an agricultural belt". Therefore, it was seen appropriate to employ a full-time "groundsman", classified as Agricultural Worker 3. Mr. Howard Irwin, the Maintenance Co-ordinator and the grievor's immediate supervisor, testified that he needed someone to repair the garden equipment. Since the groundsman had no skills to do that, he had to use his maintenance staff. As he put it "that left me short for inside maintenance". Therefore, when the groundsman incumbent retired, a decision was made to replace the groundsman with someone who can repair his own garden equipment". The Board agrees with Employer counsel that "maintenance work" in the MM 2 class standard is not necessarily confined to inside maintenance work. The standard refers to "the maintenance of a government building, institution, field station or other establishment and its associated equipment and services or in the field". However, a fair reading of the class standard as'a whole makes it clear that the work "in.the field" envisaged must be work connected with "a government building, institution, field station or other establishment". The class standard sets out a long list of tasks that may be performed by an incumbent. This list includes tasks such as erecting of fences, and repairing bridges and culverts. These are all tasks that are required for the operation of the building, institution, field station or establishment. The maintenance of equipment used in gardening and farming does not in our view fall into. this category of maintenance work. As already noted, the grievor spends a considerable part'of his time on the gardening and farming duties' The long list of typical duties of MM 2 does not contain a single task that can be said to encompass any of the grievor's gardening or farming duties. On the basis of the evidence, we find that the grievor is not engaged in the type of maintenance work envisaged in the MM 2 class standard for at least 60% of his work time. On the contrary, he spends a significant amount of time on farming and gardening duties which are not encompassed within that class standard. The evidence indicates that the grievor's job is primarily a gardening - cum - agricultural job and only secondarily a maintenance job.. He spends 8 months of the year primarily Performing gardening or fc~ming duties, including maintenance of the equipment used in those 10 duties. This evidence is in accord with Mr. Irwin's evidence about the designation of the MM 2 designation to the grievor's position. Mr. Irwin agreed that prior to the change, the groundsman position was properly classified as "Agricultural Worker 3". He also agreed under cross-examination that the grievor's Position consisted of those agricultural worker duties with some . maintenance duties latched on to enable the repairing of the gardening equipment. In'all of the circumstances the Board finds that the grievor's duties and responsibilities do not fit reasonably within the MM 2 class standard and that therefore his position is improperly classified. Is IO 2 a prober fit Having concluded that the grievor's position is improperly classified as MM 2, the Board now must consider whether IO 2 is a proper classification as the Union Claims. A review of the IO 2 class standard clearly indicates that the focus of that classification is the supervision and instruction of inmates. Thus the class standard begins with the sentence'"Employees in positions allocated to this class are engaged in the supervision 11 of work and instruction of inmates in various industries at reformatories and industrial farms." The grievor's duties were production oriented. While he had inmate helpers with him most of the time, the training of inmates was not the focus of his job, as contemplated by the ~0 2 class standard. See, Re Elrick ~t al, 10/85 (Dissanayake). The duties performed by the inmates were to a large extent labour intensive. Those duties were not complex or soDhisticated and required little skill or instruction. The inmates had no continuity in their duties because there was frequent turn over in the inmate crews.. There was no ongoing or formalised training programme. The inmates received little training on any work skills. Mo~t of the instructions provided by the grievor had to do with safety. The grievor's duties With regard to inmates is not the type of duty contemplated by the IO 2 class standard. The focus of the latter is the training of inmates. That is only an incidental or secondary result 'of the grievor's duties. Therefore the position occupied by the grievor does not fit the IO 2. In view of that conclusion the Board does not need to decide if the farming operation can be said to be an industry with the meaning of the IO 2 class standard. 12 Conclusion: Since wehave concluded that the grievor's position is not properly classified as MM 2, and further that his position is not a proper fit to the IO 2 class standard, the appropriate remedy is to direct that the Employer find another existing classification or create a new classification which properly reflects the grievor's duties and responsibilities. In so doing, .the Employer· should be cognisant of the fact that the grievor is primarily a .groundsman and gardener with additional duties as a maintenance person. In the circumstances, the Board hereby directs that the Employer find or create a classification which accurately reflects the grievor's duties and responsibilities. This is to be completed within three months of the date of issuance of this award to the parties. The grievor shall be compensated for the difference in compensation between the two .classifications for the period commencing 20 days prior to the filing of the grievance and ending-~the date on which the reclassification pursuant to this award is made effective. The Board remains seized of the matter should the parties be unable to agree upon an appropriate reclassification or the amount of compensation. 13 Dated this 30~'.'? day of November, 1990 at Hamilton, Ontario N. Dissanayake Vic~Chairpe~son · j J/~rruther~ Member.