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HomeMy WebLinkAbout1991-2130.Barter.92-06-02 ONTARIO EMPLOYES DE LA COURONNE GROWN EMPLOYEES DE L 'ON TA RIO GRIEVANCE COMMISSION DE SETTLEMENT R~=GLEMENT BOARD DES GRIEFS rSO OUt. OAS STREET WES~ S~TE 2]O0 TORONTO, ONTARIO. MSG iZ$ TELEPHON~/TEL~PHONE. (416)326-~388 rSO, RUE DUNDAS OUEST, BUREAU 2100 TORONTO IONTARIOJ, M5G 1Z$ FACSIMILE,'TEL~COPiE : (4~6¢ 326~396 2130/9Z IN THE MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 'OPSEU (Barter) Grievor The Crown in Right of Ontario (Ministry of Correctional Services) ~mployer BEFORE: W. Kaplan Vice-Chairperson I. Thomson Member D. Clark Member FOR THE A. Ryder GRIEVOR' Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR TNE J. Benedict EMPLOYER. Manager, Staff Relations and Compensation Ministry of Correctional Services H~ARIN~ May 5, 1992 .Introduction By a grievance dated June 26, 1991, Larry Barter, a Correctional Officer 2 with the Ministry of Correctional Services at the Burtch Correctional Centre, grieves that he is improperly classified and seeks a Berry Order by way of remedy, In brief, it was the union's position that the grievor was improperly classified because both his class standard, as well as his position specification, envisage correctional officers being primarily engaged in the direct care, control and supervision of inmates. In the union's position, while the grievor had some limited direct control over inmates, his job was different in that he was permanently assigned to the Control Office, and the functions that he exercised in that position, which were his "core duties," took him out of the Correctional Officers Series Class. The employer took the position that the grievor was properly classified, and that his job fit within his class standard. Before turning to the evidence in this case, it is useful to set out the relevant parts of the Correctional Officers Series Class Standard: Preamble Kind of Work Covered: This class series covers the positions of employees engaged in, or supervising the care, security controt and rehabilitation of inmates in adult Correctional institutions and Provincial Jails. In most positions, -these employees are required to work on a rotating shift basis. General All Correctional Officers may be called upon from time to time, to perform higher tevel duties or to supervise less experienced staff. Basic Functiort~: Correctional Officers carry out a variety of responsibilities related primarily to the custody and rehabilitation of adult offenders. Both purposes are implicit in all work assignments whether such assignments are of a general nature or in a particular functional area such as described below. General Duty: General Duty Correctional Officers are assigned to functional areas of the institution such as a cottage or house, a dormitory, the grille entrance, a cell wing or block, a workshop; the dining room and kitchen as dictated by the day to day requirements of the institution. ,Admis~i(~os_,3nd 13ischarge: Correctional Officers 'in this functional area are engaged in the processing of inmates admitted, transferred or discharged from the institution. I m~ndry: Correctional Officers in this functional area supervise the processing of the institutions laundry by a party of inmates and maintain control and security. The Class Standard for Correctional Officer 2 provides: This class covers positions of qualified Correctional Officers engaged in.general Correctional Officer duties, .usually on a rotational shift basis. They may be assigned to any functional area in the institution, either on a long term basis or as dictated by day to day needs. The Position Specification was also introduced into evidence and it provides, in part: Summary of Duties and Responsibilities 1. ~)0% Provides correctional supervision of inmates on ,~n assi.~ned shift by: Taking charge of an area of the Institution, observing for irregularities affecting security, discipline, and safety of inmates; searching cells, etc. as required; warning inmates in minor misconduct, laying charges in major misconduct, counselling, setting personal examples, ere; escorting inmates as required; processing of inmates on admittance and/or discharge, supervising inmate work parties; 2. 10% Performs related duties by: Maintaining records of the issue and return of all keys required by Correctional Officers or other staff; filling out conduct and attitude reports for review, parole and temporary absence purposes; writing various reports, e.g. accident reports; -keeping various records e.g. earned remission, visitors books, Icg books, etc; receivin9 and directing visitors; deputizing for other General Duty Officers and Supervisors as assigned; assisting with maintenance of i%titution, e.g. c~eanliness; assisting with development of programmes; as assigned. 6 Th~ Evidence The grievor gave evidence on his own behalf. He has worked for the Ministry since 1975, and became a Correctionat Officer 2 in 1976. As already noted, the grievor is assigned to the Control Office and is one of ten correctienal officers permanently assigned, on rotation, to this position. This is a minimum security institution housing approximately 300 inmates. There are five sleeping units at @urtch, a mess hall, a cannery, a power house and numerous outbuildings. The Control Office is the "nerve centre" of the institution, and it is located in the basement of one of the sleeping units. Two Correctional Officers work in the Control Office at any one time. In the addition to the Control Office, also called the "module", there is an adjacent segregation unit, which houses anywhere from 2 to 8 inmates. When assigned to the Control Office, one of the two Correctional Officers is largely responsible for the inmates in segregation, while the other Correctional Officer is largely responsible for the operations of the Control Office. There was some confusing eviclence with respect to the percentages of time spent by each of the Correctional Officers in the Control Office and in segregation. It is clear, however, that each day one of the Correctional Officers is primarily responsible for the Control Office and assists in segregation, while the other Correctional Officer is primarily responsible for segregation and assists in the Control Office. The next day, the partners switch roles. The amount of time spent in either function is variable, and it would vary depending on the number of inmates in segregation and work demands of the Control Office. The exact percentage of time spent in each of these functions is not, in any case, and as discussed below, determinative in the resolution of this case. While the Correctional Officers assigned to the Control Office exercise a variety of functions, the evidence indicates that other than their duties with respect to the prisoners in segregation, they are responsible for overall monitoring of inmate movement throughout the institution. They are responsible for the distribution and monitoring of numerous keys, radios, and hand-held telephones. The location of these keys, radios and telephones must be recorded in the log book, and there are various other documents which also must be filled out on a routine basis. After the switchboard closes, all calls to the institution are transmitted to the Control Office, and there is also a computer which they use and which tracks inmate movements.. A typicat shift in the Control Office involves returning and' distributing keys, as staff come and go, serving meals to the prisoners in segregation, recording inmate counts from information supplied from elsewhere in the institution at various points throughout the day, ensuring that inmates being discharged and those on temporary absence are in the right place at the right time, and bringing in inmates for visits with lawyers and others in a room adjacent to the Control Office. Most of this information is, as already noted, recorded on paper as well as in the computer. The job can be very hectic and stressful. Panic buttons and fire alarms are signaled in the Control Office, (although we did not hear any evidence with respect to the frequency with which they go off). The Correctional Officer primarily responsible for the inmates in segregation serves the inmates their meals, checks dn them every 20 minutes and supervises them during breaks. The grievor testified that his position specification was accurate, except the percentages were incorrect. In his view, he only spent about 20% of his time involved in the direct supervision of inmates. The rest of the time was spent in exercising the other functions in the Control Office, that is to say, the functions partially described in paragraph 2 of the Position Specification. The grievor testified generally about the background to the case. A number of years ago, when the Control Office was located in a different building, it was run by a Correctional Officer 3, assisted by a Correctional Officer 2. The CO 3's were eliminated in 1989, At that time, CO 2's were assigned to a new Control Office on a random basis. This did not work out, and the institution created a special unit of largely senior Correctional Officers to work in the Control Office, and (he grievor was assigned to this unit. In cross-examination, the grievor testified that when lawyers and other "professional visitors" such as police and ministers come to visit, the Correctional Officers in the Control Office are responsible for the prisoners who are brought in. The grievor also testified that every five weeks he is assigned to a Relief Shift, in which he may work in any area in the institution. In re-examination, the grievor testified that in the past two years, when assigned to the Relief Shift, he has been assigned to posts outside the Control Office approximately 30 or 40 times. Mr. Bill Varga, the grievor's partner and the President of the local, also testified. His evidence largely mirrored that of the grievor. Mr. Varga was not cross-examined by the employer, and his evidence concluded the union's case. The ei'nployer elected to call no evidence, and so the matter proceeded directly to argument. Union Argument In counsel's submission, the class standard is directed at individuals with primary responsibility for the direct care and custody of inmates. This job was distinct from the job performed by the grievor, which counsel argued was primarily directed at monitoring and recording inmate counts and locations. While Correctional Officers assigned to the Control Office had dire(~t responsibility for the inmates in segregation, this responsibility was, in counsel's view, incidental to their core monitoring and recording functions. Counsel reviewed the Preamble to the class standard with the Board, and argued that while it correctly applied to General Duty Officers, it did not apply to Correctional Officers exercising the kinds of functions exercised by the grievor. Counsel noted that the standard tists a number of ;'functional areas" of the institution, and submitted that it was noteworthy that the Control Office was not on the list. The only reasons for this, counsel submitted, was because-the job being performed there was different from the job being performed elsewhere in the institution. Counsel suggested that it was important to keep in mind that the institution attempted to operate the Control Office on a rand, om basis with ordinary Correctional Officers, but that this attempt failed. This was further - evidence of the fact that the job was not an ordinary Correctional Officer's position; rather it was different and specialized with a focus on monitoring and record keeping. Counsel argued that the jurisprudence of the Board was clear that it was core duties that mattered in a classification case, not incidental duties. In counsel's view, the grievor only had incidental Correctional Officer duties, as set out in the Class Standard, and on that basis the grievance should be upheld. JEmployer Argument Mr. Benedict began his submissions by citing a number of well-known authorities setting out the jurisprudence of this Board in classification disputes, including Braund et al 39/89 (Slone); Lunn 595A/90 (Dissanayake); 10 Enni~ Schuler 17/85 (Kirkwood); Edward~, Mo. loney 11/78 (Swinton); Ev~,n$ 1531/90 (Samuels); Elrick et al 10/85 (Dissanayake); and Ackert 559/90. In Mr. Benedict's submission the union had failed to discharge the burden before it, namely of establishing that the grievor was not properly classified. Mr. Benedict argued that the Class Standard clearly covered the grievor. The grievor was, as set out in the preamble, engaged in the care, security and control of inmates, and he worked on a rotating shift. Moreover, while the Control Office was not specifically listed as a functional area of the institution, Mr. Benedict noted that the General Duty part of the Class Standard did not restrictively list the functional areas. It gave some examples of functional areas within an institution, but specifically provided for other areas as welt. Mr. Benedict noted that the Class Standard anticipates that Correctional Officers will be required to work in a variety of duties, but that they may also be assigned to particular duties. This was, in Mr. Benedict's view, the situation in the instant case. Moreover, it was noteworthy that the grievor not only had ongoing responsibility for the prisoners in segregation, he also served throughout the institution when posted on the Relief Shift. Mr. Benedict suggested that working approximately twenty shifts a year was not incidental to the grievor's core functions. In conclusion, Mr. Benedict argued that the grievor was exercising custody and supervision over the inmates, and that this is what the Class Standard was all about. This was not, accordingly, an appropriate case for reclassification. Union Reply Counsel argued that characterizing the grievor's monitoring and record-keeping functions as the custody and care of inmates would be comparable to 'suggesting that anyone who worked in an institution and who 11 had contact with inmates, such as a cook, should be properly classified as a Correctional Officer. In counsel's view, this suggestion could not be maintained, and it was important to focus on each individual's core duties. Moreover, it was important that this analysis be done within the context of the position specification and with an appreciation that the Control Office was not one of the functional areas in the institution. When that was done in the instant case, counsel argued that from both a quality and quantity point of view, the grievor was improperly classified and should be ordered reclassified. D~,cisi~n Having carefully considered the evidence and arguments of the paK. ies, we have come to the conclusion that this grievance must be dismissed. In case after case, this Board has indicated that in order for a classification grievance to succeed, the union must Satisfy the Board that there is a substantial difference between the duties being performed and the duties described in the class standard. In our view, the evidence establishes the fact that in the instant case the grievor does spend his time in the care, security and control of inmates in the institution as required by the Class Standard. The grievor does this when he supervises the inmates in the segregation unit, when he is responsible for inmates beir~g brought into the Control Office area for visits and when he is assigned to the Relief Shift. The rest of the time, the grievor meets the requirements of the Class Standard through his responsibilities for the care, security and control of inmates pursuant to his recording and monitoring functions in the Control Office. Unlike the case of a cook, for instance, whose primary responsibility is cooking, and who may have secondary 12 responsibilities for the care, security and control of inmate assistants, the job of the grievor is directly related to the care, security and control of inmates. When the grievor records inmate movements in his log, he is exercising that function. When the grievor records information about mass inmate movements in the computer-he is exercising that function. When the Correctional Officer receives panic calls and responds to fire alarms I:hat sound in the Control Office he is exercising that function. Everything that the grievor testified to, one way or another, directly or indirectly pertains to the care, security and control of inmates. This Js the basic function of the grievor, and the Basic Functions part of the class standard implicitly encompasses these duties. And that is why the percentages of time spent working in segregation as compared to the Control Officer are ultimately not determinative of this case. The evidence establishes that everything the grievor does is encompassed by the Class Standard. In our view, it is immaterial that the Control Office is not listed as one of the functional units in the institution. Neither is the segregation unit. The list is not exclusive, and the standard clearly contemplates that other areas such as the Control Office and segregation unit will falI under the purview of Correctional Officers. The Class Standard also provides for long-term assignments on rotation to particular posts, as is the case here. The grievor is obviously a highly qualified and experienced Correctional Officer rendering valuable service to the Ministry. On the evidence before us, however, he is not improperly classified. Accordingly, and for the reasons given above, this case is dismissed. 13 DATED at Ottawa this 2.~ day of'~ur'e ,1992. William Kaplan Vice-Chairperson I, ,Thomson ~¢t~lember D. Clark Member