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HomeMy WebLinkAbout1991-1817.Robinson.93-03-08.pdf ONTARfO EMPL OYeS DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARtO GRIEVANCE C.OMMISSiON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STF~EET WEST, SUITE 2100, TORONTO, ONTARK1 MSG 1Z8 TE£E;:'HONE/T~-L£F~HONE: r,=~6) 326-~38~ 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), ~O ~ZB FACSIMILE/T~[~COPIE : (416] 326- ~396 1817/9~ IN THE MATTER OF ANARBZTRATION Under THE CROWN EMPLOYEES COLLECTIVE B~RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Robinson) Grlevor The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE B. Kirkwood Vice-Chairperson S. Urbain Member C. Linton Member FOR THE N. Coleman GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors. FOR THE C. Foster RESPONDENT Grievance officer Ministry of Correctional Services NEARING April 28, 1992 October 13, 1992 Page DEC~SION The grievor Mike Robinson is employed by the Ministry of Correctional Services as a Groundskeeper at the Ontario Correctional Institute, Brampton, Ontario, ("OCI") and is classified as a Maintenance Mechanic 2. Mr. Robinson seeks reclassification as an Industrial Officer 2 retroactive to 20 days prior to the filing of the grievance with interest payable on any retroactive payment. Alternatively the Union asks this board for a 'Berry' order directing the employer to create an appropriate classification within 90 days of the issuance of the decision. The Ministry conceded that Mr. Robinson was wrongly classified. As a result this decision relates solely to remedy. The Industrial Officer 2 Class Standard which classification the grievor seeks, states~ INDUSTRIAL OFFICER 2 CLASS DEFINITION~ Employees in positions allocated to this class are engaged in the supervision of work and instruction of residents in various industries at reformatories and industrial farms. In some positions, they are in charge of 'a small industrial operation such as the Shoe Shop at Mimico or the Braille Shop at Millbrook. In these positions they are responsible for estimating and procurement of materials. In other positions, they assist in management of a production operation not requiring skills of any of the designated trades such as the woollen Mill at Guelph or the Marker Plant at Millbrook. In many of these positions, they require specialized processing knowledge and skills are responsible to the manager of particular controls or skilled operations. They train residents in the required processes to which they are assigned, allocate duties and check quality and quantity of production. They are responsiDle for the servicing, proper use and adherence to safety precautions in the operation of the equipment. They have responsibility for production schedules, work standards, shop maintenance and security arrangements in their area. They may perform the more complex work as required or Pa~e3 any of the work in order to demonstrate procedure or to expedite production as needed. QUALIFICATIONS: i. Grade 8 education, preferably Grade i0; varied practical knowledge of skills related to the work to be performed. 2. Two years of satisfactory experience as an Industrial Officer 1 in the appropriate type of work or its equivalent. 3. Ability to deal effectively with residents; ability to assess standards of residents' industry and conduct; ability to estimate requirements, to establish production methods and to control production and quality as required. OCI is a treatment facility for the rehabilitation of alcoholics, drug addicts and sex offenders who have been convicted and sentenced to serve a sentence of up to two years less a day. It is a medium security institution. It houses approximately 220 residents. The average stay for a resident is six months. The residents work during their stay at theinstitution. OCI has grounds of approximately 150 acres. Mr. Robinson is responsible for maintaining approximately 60 acres. Mr. Robinson who is the only groundskeeper, cannot maintain the grounds by himself and he uses residents to assist him daily from 8:30 a.m. to 4:30 p.m. Mr. Robinson maintains fields to the north and south of the building, front lawns on the east side of the building, lawns behind the institution and inside the. fence, two courtyards which contain flowerbeds, trees and shrubs, and a flower garden located in the front circle. He is also responsible for maintaining a soccer field, two baseball diamonds and a running field. During the winter, Mr. Robinson is responsible for clearing snow and maintaining roadways and parking lots inside the fence. Page 4 ~ More particularly, Mr. Robinson is responsible for maintaining fields which cover approximately 20 to 25 acres. He also maintains 30 to 35 acres of lawns. This requires fertilizing in the spring and cutting the grass during the summer with either a small commercial type lawnmower or the larger vehicles, maintaining edging by commercial weedeaters and trimmers. Mr. Robinson and Charles Hoggman, the Assistant Superintendent determine what flowers are to be placed in the centre display in front of the institution, although the choice of flowers is greatly dependent upon what is available. Up to two years ago, Mr. Robinson picked up two to three loads of flowers from the Ontario Provincial Police Training Centre, which had extensive greenhouses. Now he goes to the Guelph Correctional Institution, where he is limited in choice and quantity to what %hat institution has left over. Last year he was also limited by a ceiling cost of $300.00. Less flowers were purchased as the courtyards were under construction. After the flowers have been chosen for the primary beds Mr. Robinson allocates flowers to the various units within the institution. Mr. Robinson maintains the flowerbeds by working the soil in the spring, fertilizing the beds, and planting the beds. Mr. Robinson is responsible for transporting flowers at the end of the season indoors, repotting some plants such as tulips and taking cuttings from the geraniums. At the end of the season, last year approximately thirty plants were transplanted. He supervises their watering during.the winter and maintains cacti located inside the buildings. There is a vegetable garden, but Mr. Robinson does not spend much time on the vegetable garden, as that garden is maintained by another unit. ge discusses what grows and what does not with the unit manager and residents, ge ensures the vegetable gardens have an adequate water supply. ~e tills for two to three Page 5 days in the spring and two to three days in the fall, in addition to a little weeding. Mr. Robinson is responsible for maintaining the equipment required for his work and keeping it secure. The equipment includes four push type lawnmowers, and four commercial weed eaters/trimmers and a snowblower, and two large vehicles, a Ford tractor and a David Brown tractor, to which Mr. Robinson adds equipment, such as snow ploughs. Mr. Robinson maintains supplies for the equipment. He uses oil, greases, gasoline 'fuels, servicing items for tune' ups, fertilizer. He lists supplies needed for the season and where they can be bought. For items in excess of $300.00, Mr. Robinson obtains estimates from three suppliers and submits them to Bill ~ardy, the Maintenance Supervisor, who places the orders. Mr. Robinson picks up the supplies or arranges to have them delivered. Mr. Robinson is responsible for snow removal on all roads. Mr. Robinson monitors storms and works overtime when necessary. Mr. ~ardy assigns .work to Mr. Robinson on a daily basis. Each morning Mr. Robinson goes to the units to see which residents are available and for what length of time. ~e may work with up to seven residents, although the average work crew is two or three. Mr. Robinson interviews residents that have been newly allocated to him, determines their capabilities and allocates duties to them. The residents do not receive a formal course of instruction. The degree of instruction is left to Mr. Robinson's discretion. Mr. Robinson estimates that he spends approximately 75% or more of his time training, supervising and checking residents. Only about 15% to 20% of the work is done by himself. The residents spend about 75% of the time in the summer cutting grass and about 40% to 45% of the time in the winter doing snow removal, sanding and salting. Initially he gives them simple Page 6 ~. tasks requiring shovel and spades and gradually moves them to more complicated tasks which involves using the larger equipment. He instructs residents on the use of equipment, and the problems they can encounter. Mr. Robinson estimates that approximately two thirds of the residents will be able to drive the tractor and be able to do some minor servicing of the tractor during their working period with him. Mr. Robinson is responsible for the custody of the residents and has taken a one week course prerequisite. On occasion he has reported either his crew or other crews in unauthorized areas. He has.witnessed an attempted escape and returned the inmate to the correctional officers. He makes occurrence reports and incident reports when necessary, prepares statements on request by the Parole Board. He makes monthly evaluations on each resident for the discharge coordinator, reporting on the resident's work ethic and their behavior and any problems. He has given letters evaluating two residents' work performance for their job applications outside the institution. The Union makes two arguments. First, the Union submits that the duties and responsibilities are greater than those presently described in his groundskeeping classification and are similar to those of an Industrial Officer 2. The Union submits that those duties, especially with respect to the supervision and training of residents, and the security duties as a Peace Officer, greatly exceed and differ from those anticipated by the class standard for the Maintenance Mechanic 2. The Union argues that Mr. Robinson should be classified in a Corrections classification and not in a Maintenance classification, as his groundskeeping duties could not be carried out without the residents. The Union submits that Mr. Robinson's focus on training the residents and the exposure he provides to the work crew is similar to a commercial work crew, which makes him more suitable for classification in the Industrial Officer series than in Maintenance. The Union submits that the work that as in Page 7 OPSEU (Townsend) and Ministry of Correctional Services G.S.B. #4/85 etc., (Brent), the Industrial Officer series does not have to apply only to manufacturing, but also applies to horticulture. Secondly, the union relies predominantly on a usage argument. The Union's representative argues that the test is whethe~ the duties and responsibilities are substantially similar, not identical, to an employee in the class standard sought. The Union's representative argues that the work the grievor performs is substantially the same as the work performed by Mr. Schrader at the Vanier Centre For Women. Mr. Schrader was an Agricultural Officer 3 and successfully grieved his reclassification to an Industrial Officer 2.(OPSEU(Schrader) and Ministry of Correctional Services G.S.B. #378/90 (Wilson)). Mr. Schrader was responsible for the greenhouse and used residents to fulfil his duties. The Union submits that Mr. Robinson's responsibility to acquire the seedlings from the OPP and later Guelph, to transfer the seedlings, and take cuttings was closely parallel to Mr. Schrader's responsibilities. Similarly, Mr. Robinson has some responsibilities for the production of vegetables, and has the general responsibility for growing flowers, maintaining beds and protecting shrubs. The Union submits that there is a close parallel between work assigned to Schrader's work crew and Robinson's work crew. The responsibility for training residents closely parallels Mr. Schraders. The Union's representative argues rhea% both carried out necessary maintenance of the facilities and in so doing both focus on teaching skills and work ethic so that the residents will be better, suited to return to their communities. The work experience that the residents under Mr. Robinson's direction receive is similar to that of a commercial landscaping company. He argued that as with Mr. Schrader, if there were no residents, Page 8 the nature of the job would change radically. The Union argues that the only difference between the jobs is the way that they are carried out. The Union also relies upon OPSEU(Anstett) and Ministry of Correctional Services G.S.B. #5/85 etc. (Knopf), and OPSEU(Bors) and Ministry of Government Services G.S.B. 1283/91, 1397/81, The Employer argues that although Mr. Robinson is improperly classified, Mr. Robinson's job does not meet the four corners of the class standard of an Industrial Officer 2. His job fails to have both the production and the training aspect found in the Industrial Officer 2 class standard. Employer's representative argues that Mr. Robinson's primary function is that of maintenance and not training of residents. The Employer argues that although the arbitral jurisprudence has applied both the tests of whether the jobs are "substantially the same" or "the same", in any event the distinctive and essential elements must be the same. The nature of the institutions are different. Vanier is not a treatment centre, while OCI is. Employer's counsel argues that Mr. Schrader's job is different from Mr. Robinson. It has a maintenance aspect, a production aspect and a formalized training program. Employer's counsel argues that the facet of production is missing from Mr. Robinson's job. Mr. Robinson's primary task is maintaining the grounds, and his secondary role is training residents in the safe use of the equipment. The training is dependent upon the residents' desire to learn and is not comparable to teaching a formalized teaching program. The Employer relies upon OPSEU(Beals and Cain) and Ministry o~ Community and Social Services G.S.B. 30/79 (Draper); OPSEU(Stasinaki et al.) and Ministry of Correctional Services G.S.B. 1145/90, 1146/90 etc. (Fisher); Page9 OPSEU(Rounding) and Ministry of Community and Social Services G.S.B. 416/965/1410 (Beatt¥); OpSEU(McCourt) and Minis%fy of Attorney-General G.S.B. 198/78 (Saltman); OPSEU(Lowman et. aK.) and Ministry of Transportation and Communications G.S.B. #13/82 etc. (Saltman); OPSEU(Landry) and MiniStry of Government Services G.S.B. 840/84 (Gorsky); OPSEU(Wallace .and Jackson) and Ministry of Health G.S.B. 274/84 (G°rsky); OPSEU(Karlovich) and Ministry of Housing G.S.B. 1474/89 (Keller}; OPSEU(Anand) and Ministry of Natura! Resources G.S.B. 2023/89 (Low); OPSEU(Cutrone, Serkies) and Ministry of Transportation) G.S.B. 511/87, 512/87; OPSEU(Ennis, Schuler) and Ministry of Correctional Services G.S.B. 17/85, 1396/88A (Kirkwood); OPSEU(Heslinga et al.) and Ministry of Correctional Services G.S.B. 0012/85, 0006/85 etc.; OPSEU(Lunn) and Ministry of Correctional Services G.S.B. 595A/90; and (OPSEU(Hepplestone) and Ministry of Culture and Communications G.S.B. 48/88 (Dissanayake). The Board in Beals and Cain (supra) sets out the process Boards use in classification matters and sets out the distinction between the class standard test and the usage test. it states at: It is well established that in position classification case, the Board must direct its inquiry to the questions, first, whether or not the work actually performed by the employees is that set out in an appropriate class standard and, second whether or not he is performing work substantially similar to that being performed by an employee whose position has been placed in another classification. In the first, instance the employee's work is measured against class standards and in the second it is measured against that of an employee in a position that has been differently classified. The purpose is to establish that the employer is conforming to its classification standards or that the employer has, in effect, modified those standards. First, applying the class standards test, Mr. Robinson's duties and responsibilities cannot meet the criteria set out in Page 10 the Industrial Officer 2 class standard. There are two necessary components to the standard, the instruction of inmates or residents, in an industrial or production setting. An essential feature of the industrial series is that the employee must be involved in the production process, or in an industry. As seen in the qualifications for the position, the employee must have the ability to "estimate requirements, to establish production methods and to control production and quality as required." Employees use these skills in the context of "industries" or on a "small industrial farm." The standard contemplates that the industry may be small. In Ans~ett (supra), the board found that it also can include a Building Maintenance Fore,an when the Board compared the position of the Building Maintenance Foreman to the Foreman of the Repair Shop at the Guelph Correctional Centre. However, in the &nstett decision, the Board found that the Industrial Officer series was applicable where there was a production of goods or provision of extensive services. The Repair shop at Guelph Correctional Centre was characterized as "a relatively complex production operation". In Townsend (supra), the Board found that an industrial farm or industry or production can include a horticultural operation. The purpose of a greenhouse can be, and was in the case of Townsend, the production of plants. As Vice-chair Brent stated at page 26, "they are charged with running an enterprise (my emphasis) to produce certain end products (my emphasis) using the labour of residents." Although Mr. Robinson was an enterprising individual and carried on his own business in landscaping between 1983 and 1985 and hired between one to three people, and considered his work at OCI comparable we do not find in the context of the Industrial Officer series that maintaining the grounds as does Mr. Robinson with the assistance of residents is a small commercial, industrial Page 11 or production enterprise. We cannot say, as did Vice-chair Brent and Vice-chair Wilson that: "Based on the evidence before us we must conclude that the Mr. Robinson is a qualified, well-trained horticulture and landscape technician who conducts an operation which, in terms of work exposure for the res'idents, is comparable to a commercial grower and landscape operation. There is planning, there is production, there is monitoring and caring for .the plants. In short there is the very 'operation that an inmate would find in a work situation with a greenhouse · operator and landscape service." Mr. Townsend, like any commercial green house operator had to make sure that plants were ready when required by the user of customer. We do not find that maintaining cuttings of approximately thirty geraniums and watering and caring for several other plants during the winter months and maintaining the flowerbeds during the summer meets this criteria. Nor can Mr. Robinson's involvement with the vegetable garden be analogous to an involvement in production. There is no concept of meeting a "production schedule''~ as set out in paragraph 2 of the class standard, or as found in the Townsend decision. Union's counsel submitted on the basis of the Anskett decision that the "Industrial Officer" series can extend to maintenance. We agree but there is a distinct factual difference between the two cases. In Amskett the Board found that it replicated a commercial enterprise. They were in the business of delivering services. The grievors were subject to a production schedule. Mr. Anstett checked quality and quantity of production. These elements are not present in this case. We do not find that it is a commercial enterprise. As Mr. Robinson admitted, the majority of the time is spent on cutting grass during the summer and maintaining the driveways and parking lots free from snow and ice. Mr. Robinson is involved in Page 12 maintaining the grounds and maintaining plants and is not involved in meeting production schedules. Although Mr. Robinson does purchase supplies up to a limit of $300.00 as needed it is not incidental to a small industrial shop or production facility. The purchase of the plants was limited to $300 last year, and in other years was a reflection of what was left over from the Guelph Correctional Institution. Mr. Robinson allocated what he received, but he did not determine to any great extent, what was needed. This is not sufficient to bring Mr. Robinson within the Industrial Officer series. What is found in the Industrial Officer series that is a key feature of Mr. Robinson's job is the supervision of inmates to carry out the grievor's duties. Mr. Robinson is responsible for residents, and trains residents to operate equipment safely. ~e trains them in basic skills that are required to operate handmowers, weedeaters, tractors and snow removing equipment carefully. Although supervision is a key feature of the Industrial Officer 2 standard, the essential setting or feature of an industry or a production facility of goods or services is not present. To ignore the industrial or production component would be to ignore the examples that are given in the standard, which provide the context for the job. Although Mr. Robinson performs some of the tasks of the industrial office series, he cannot show that the core duties or significant of his job in practice was the same as that performed by the senior classification (~dwards and Maloney) (supra). Therefore Mr. Robinson's duties and responsibilities do not meet the duties and responsibilities as set out in the Industrial Officer 2 class standard. Turning them to the usage argument: Page 13 Although the panels of the Board initially 'required whether two jobs in comparison to be identical, or virtually the same, the test has been modified such that the Board presently accepts the "substantially similar" test as set out in Beals and Cain (supra). Although the grievers in Bors (supra) met a higher standard in that 'the work between the two comparators was essentially the same, the Board points out the underlining philosophy o~ the usage argument to apply the concept of fairness and equality of treatment, both in status and in wages, of people performing essentially the same work. The Board adopts the reasoning in the Beals an4 Cain (supra) case and quotes: It may be assumed that among the objectives of the employer's classification system are the achievement of. uniformity in policy and consistency in practice throughout the public service, and equitable treatment of individual employees. It follows that it is an abuse of the system and unfair to~ employees where the positions of employees who are performing substantially similar work are placed in different classifications. By intervening where that condition is found to exist the Board, rather than frustrating the intent or undermining the operation of the classification system, is preserving the legitimacy and credibility of the system. Beals and Cain has. been applied time and time again, such as in Kernick (supra), Bors (supra), Anstett '(supra), Cut~one/serkies (supra). Where the work between two griever and the employee being compared is the same, they ought to be classified the same. There may also be situations where there are dissimilar elements, but the core functions and responsibilities are similar. Inherent in the concept of "substantially the same" is that the essential elements of the job must be substantially similar. We must then consider whether Mr. Robinson's job is substantially similar to Mr. Schrader's. The parties reached an agreed statement of facts on the additional duties that Mr. Schrader performed that Mr. Robinson did not. In the broadest terms, Mr. Robinson and Mr. Schrader ~ 14 both plant, cultivate and maintain grounds with the help of residents. Although Mr. Robinson does not have the same responsibilities as Mr. Schrader does for the vegetable garden, he does have the same responsibility to transplant young plants into flowerbeds, maintain them through the growing season, use residents to follow through on these duties, and ensure that the residents do the assigned work. However, there are major distinctive differences in the core functions of their jobs that makes the two jobs different° The most significant is that the work that Mr. Robinson performs is not equivalent to a production. In the $chra4er (supra) decision, the board found that there was substantially no difference between the duties of Mr. Townsend and Mr. Schrader. Mr. Schrader was responsible for the greenhouse. The Board found that the nature of the greenhouse operations was "a production" and the size of the operation was not material. Although we are not determining Mr. Schrader's classification, many of these duties that Mr. Schrader performs that Mr. Robinson does not, clearly relates to their characterization as related to production. It was agreed that Mr. Schrader - determines produce and quantities in consultation with the institutional chef; - determines production schedule (planting, maintaining and harvesting) for vegetable produce; - plants the produce from seeds or transplants the produce from the greenhouse to the vegetable gardens; maintains vegetable gardens and produce throughout the growing period; determines when to harvest garden produce; - prepares estimates and requisitions for all supplies needed for vegetable gardens for management approval. Mr. Robinson is not responsible for the vegetable gardens. There is a distinct difference between ensuring that Page 15 plants are watered and being responsible for the production of vegetables in gardens covering 3/4 acres as does Mr. Schrader. The focus of Mr. Schraders' tasks in the vegetable garden was directly related to his "responsibility for production schedules, work standards, shop maintenance and security arrangements in their area. They m~y perform the more complex work as required or any of the w~rk in order to demonstrate procedure or to expedite production as needed." As we have already found, we do not find that maintaining grounds a production. We are not satisfied that Mr. Robinson's case has horticultural skills, which he is required to ~se, beyond the very basic skills required to cut grass and maintain young plants in flowerbeds. Although both Mr. Schrader and Mr. Townsend use inmates to carry out their duties, there is a substantial difference in their teaching roles. Mr. Schrader has from time to time inmates who are enrolled in a co-op program and receive credit towards a high school degree. The program was devised by a teacher in the co-op program and approved by the Principal of the co-op program. Mr. Schrader developed the suggested learning experiences. A structure that has to be complied with, creates a fundamental difference in the nature of the two jobs. By having a formalized course, there are specific tasks, skills and duties that the residents are taught. The program that Mr. Schrader developed illustrates the structure. On the other hand, most of the work performed by the residents was.either cutting grass or snow removal. There was no formal course of instruction to follow. It was left to Mr. Robinson's discretion to choose the degree and level of instruction necessary. The training was limited to the the safe operation of the equipment. It was not comparable. Even if Mr. Robinson were to teach at the highest level for this job, it was to teach no more than basic working skills. Page 16 t Although there are some elements of Mr. Schrader's job that are substantially similar to Mr. Robinson's job, there are are other essential elements of the job that are missing which relate to core duties, levels of skills, and initiative. Therefore we cannot find that Mr. Robinson's job was substantially similar. ' Since Roun4ing (supra) and M¢Court (supra), the role of the Board has changed and now the Board can direct the Employer to create the appropriate standard. As Mr. Robinson's job does not fit the class standard of the Industrial Officer, and nor is it substantially similar to that of Mr. Schrader's job, we therefore direct the employer to create an appropriate classification for Mr. Robinson within 90 days of the issuance of this decision. The grievor, Mr. Haggan, is a Maintenance Mechanic 2 and a Carpenter at OCI, and seeks reclassification as an Industrial Officer 2. The parties agreed that Mr. Haggan's grievance was a separate and and different matter. The parties agreed and the Board accepted that the Board would remain seized to hear Mr. Haggan's grievance after the evidence and argument was presented on Mr. Robinson's grievance. Therefore, the grievance of Mr. Haggan will be heard after application is made by the union to the Pag~ 17 Registrar for a date for the hearing in that matter to be heard. Dated at Toronto, this &th day Of March, ~993. B.A. KirWwOo~, Vice-Chairperson S. Urba£n, Union Member C. Linton, ~m~loyer Member