HomeMy WebLinkAbout1992-0590.Holder&Streitenfeld.94-08-05
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ONTARIO
CROWN EMPLOYEES
EMPLOYES DE LA COURONNE
DEL'ONTARIO
Ct.'.",
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GRIEVANCE
SETTLEMENT
BOARD
COMMISSION DE
REGLEMENT
DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8
IN THE MATTER OF AN ARBITRATION
Under
. TELEPHONEITELEPHONE~ (416) .326-1388
FACSIMILEITELf!COPIE: (416) 326-1396
590/92, 591/92
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THE CROWN. EMPLOYEES COLLECTIVE BARGAINING ACT
BETWEEN
. BEFORE:
FOR THE
GRIEVOR
FOR THE
EMPLOYER
HEARING
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Holder/Streitenfeld)
and -
The Crown in Right of Ontario
. (Ministry of cC!)rrectional services),
Grievor
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Employer
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A. Barrett
J. Carruthers
R~ Scott
Vice-Chairperson
Member
Memmer
R. Davis.
Counsel
Koskie & Minsky
Barristers & solciitors
G. Lee
senior Staff Relations Officer
Ministry of Correctional Services
February 9, 19'93
september 17, 1993
March 2, 1994
April 18, 1994'
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D E CIS ION
These two grievors hold the class title of !Rehabilitation '
Officer 2 at the Niagara Detention Centre, and grieve that they
should be paid the custodial responsibility allowance pursuant to
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Appendix 8 of the ,collective agreement, which is set out below:
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liRe: Appendix 8
(See also ArticleS - Pay Administration, Section S.9 -
Custodial Responsibility Allowance)
This will confirm that effective January 1, 1984 a
Custodial Responsibility Allowance of two thousand
dollars ($2,000.00) per year is payable to employees of
the Ministry of Correctional Services and employees
working in training schools operated by the, Ministry of
Community and Social Services,' in addition to the rate,
of pay specified for the class of the positions to which
they are assigned, provided they fulfill 'all of the
following requirements:
(a) they are not professional staff such as teachers,
nurses, social woikerg or psychologist~;
(b) the positions to which the employees are assigned
are not cpvered by classes which already t~ke into
account responsibility for the. control of inmates
or wards, such as Correctional Officers, Industrial
Officers, stipervisorsof Juveniles, Observation and
Detention Home Workers, Recreation Officers
(Correctional Services), Trade Instructors and
Provincial, Ba-iliffs;
( c) ( i) they are required, for the, maj or portion of
their working time, to direct inmates or wards
engaged in beneficial labour;
or
(ii)
as group leaders/lead hands, they are directly
responsible, for the majot portion of their
working time, for operations involving the
control of a number of inmates or wards engaged
in beneficial labour;
(d)
they are responsible for the custody of inmates or
w~rds in their charge and are required'to report on
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their conduct and lay charges' where breaches of
institutional regulations occur.
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The Custodial Responsibility Allowance shall be paid
according to the base rate of pay for the class involved.
~ weekly rated classes - $38.40/week
hourly rated classes -
40 hour week - 96 cents/hour
36 1/4 hour week
$1.06/hour"
Mr~ Streitenfeld's position title is Temporary Absence Program
Co-ordinator, and the purpose of his position is to serve as co~
ordinator of all institutional and community activities related to
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the Community Resource Centre and the John Howard$ociety Temporary
Absence Programs. It is his job to research pertinent informatioI}
regarding inmate suitability to participate in the programs arid to
organize~and monitor inmate participation.
Mr. Streitenfeld deals with about 1,300 applications for
temporary absence permits per year ~ The Ministry has a contract
,with Wayside Community Resource Centre' to l;1ouse up to 30 inmates
who are permitted to leave the. premises to work, attend school, get
medical treatment or who are therefor compa~sionate reasons.
Resident staff at Wayside supervise the inmates and ensure that
they obey posted house rules. Inmates fill out an application form
for TAP, then are interviewed by Mr. Streitenfeld so that he can
assess their suitability for the program. These interviews take
place in booths, and the inmates are brought there and taken away
by Correctional Officers. Mr. Streitenfeld performs a security
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clearance check on the inmate, reviews clinical assessments, talks
to ' Probation 'and Parole Officers, and does whatever else is
neces~ary~to satisfy himself that the inmate is suitable for the
program. He then makes a recommendation to the Superintendent who
decides the issue. If the inmate is accepted, Mr. Streitenfeld then
explains to him his rights and obligations and the rules at the
halfway house, including the consequences of bad behaviour. Both
the inmate and Mr. Streitenfeld, on behalf of the Superintendent,
then sign the temporary absence permit. If the application is
denied, Mr. Streitenfeld has to tell the inmate why and advise him
of the appeal procedure. Once inmates are on the program, Mr.
Strei tenfeld monitors their behaviour through daily telephone
conversations with the Director and receiving and reviewing written
.behaviour reports.' He discusses health, security and behaviour
concerns with the Director and Program Co-ordinator at Wayside, and
occasionally attends at the Centre to investigate incidents. Twice
a year he does a compliance review of the Centre to note any
deficiencies in the physical plant and to ensure that the Centre
is complying with its contractual obligations. He also goes out to
inspect proposed new job sites and assess~s community work projects
for suitability, primarily from a health and safety point of view.
Mr. Str~itenfeld has authoiity to lay misconducts, and does ~o on
occaS"ion where the Centre house penal ties have not corrected a
behavioural problem.
The John Howard Society provides work for inmates who are
serving their time on weekends. Mr. Streitenfeld gathers
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information, including a security clearance, about an inmate, then
delivers ~t to the Society, ~ho interviews the inmate and decides
whether or not he is acceptable. Mr. Streitenfeld works a regular
Monday to Friday week, and the inmates, working through the Johti
Howard Society, serve time from Friday night to Monday morning, so
it is quite possible that Mr. Streitenfeld may, never have any
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personal inmate contact. If the John Howard Society has a probiem
with an inmate on the weekend, they contact the Shift Supervisor
at the jail and he will investigate and decide what to do. Mr.
Streitenfeld is not involved with the transport of inmates to and
from either facility.
Mr. Holder I s position title is Classification Officer, and the
purpose of his position is to provide inmate services r,elated to
the classification process,and to assess the rehabilitative needs
of inmates and make appropriate referrals to available-programs.
He interviews inmates and gathers information from several sources
in order to make recommendations for treatment or other needed
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programs and the placement of inmates into appropriate institution
work programs.
It is Mr. Holder's responsibility to assign inmates to the
institution work programs. Inmates work in the' storerooms, , the
kitchen, the laundry, and doing general work, such as cleaning the
institution and gardening and snow removal. ,There1.s a 26-bed
worker dormitory, and Mr. Holder selects the people who will occupy
it, and decides where they will work. He usually makes the work
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) assignment decision at his initial classification interview with
the inmate. Inmates are escorted to him for interviews and are
escorted to their work sites either by 'Correctional Officers or the
people who will be in charge of them in their work area~ Everyone
who supervises these inmates while at work receives the custodial
responsibility allowance .Mr. Holder advises the inmates about what
is expected of them at the work site, and he usually does. an
inspection of each work site every day to see how things are going.
He can write up a misconduct if he spots 'some bad behaviour, but
usually it is the direct supervisors of the inmates who write the
misconducts. Sometimes a supervisor will complain to Mr. Holder
that he is not satisfied with an inmate's wor~, and Mr. Holder will
have him removed from the wor~ site. A Correctional Officer will
then move the inmate out of the worker dormitory. Aside from the
institution work program, there are about 40 other programs within
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the institu~ion, such as Alcoholics An~nymous or drug counselling
and discharge planning to which Mr. Holder refers inmates.
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Traditionally people occupying both of these positions have
not received the custodial responsibility allowance. However, in
1991, a Grievance Settlement Board decision: Cannon, GSB #1714/90
(Samuels), held that the co-ordinator of a temporary absence
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program and institutional\work program at the Metro East: Detention
Centre who was classified as a Rehabilitation Officer 2 was
entitled to receive the custodial responsibility allowance. These
grievors wish to follow in Ms. Cannon's footsteps.
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It is important therefore to carefully review the findings
made in, the Cannon case.' At page 3 of the decision, the Board
described Ms. Cannon's job duties as follows:
II In her current position, she is the person at the
instituti6n who handles the paperwork necessary when an
inmate will leave the facility on the Temporary Absence
Program (a program designed to help the inmate
reintegrate back into the outside community - involving
temporary leave for work, slchool, compassionate reasons,
orin the period ' immedia,tely preceding the inmate's
release date ), and she does some of the escorting of
inmates on their way out of the institution,. As well, she
runs the Institutional Work Program. Her claim for
Custodial Responsibility Allowance is based primarily on
her work invblved with the latter Program, together with
the escort functions she performs under the TAP.
There are many jobs in the institution which are
filled by inmates - in the laundry, the kitchen, on the
grounds. This is the Institutional Work Program.
Generally there are 36 inmates who are working, and each
day some will leave the Program and will be replaced by
,new candidates. Much of the grievor' s' day is taken up
with selecting the inmates who are new to the IWP (this
requires :i review of the documentary record concerning
the potential candidates, and interviewing them);
escorting the selected inmates to the medical office and
wa~ching over 'them while they are examined~ escorting
them to Unit2B, which will be their living quarters
while they are on the IWP; escorting inmates to their
work stations; checking the work stations frequently to
ensure that the inmates are doing their assigned jobs;'
counselling inmates about the rules governing their
conduct while on the IWP, and the consequences of a
fai~ure to comply with these rules; escorting the inmates
who are not working out to other work stations or back
to a Unit. These duties take up the vast majority of her
working time during a shift.
She does have the authority to issue a misconduct
to an inmate on the IWP, but this occurs very rarely. .
The grievor testified that her TAP duties take 20%
of her time, and the balance of her time is spent on the
IWP, and that 7S% of her time is spent dealing directly
with the inmates under both programs. These figures were
not seriously contradicted and they seem reasonable to
us, in light of the description of the grievor's daily
duties."
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There the Board found that it had no hesitati,on in concluding
that for the majority of her working time, the grievor was required
to direct inmates engaged in beneficial labour. The Board described
this direction as'follows:
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II She' directs' the inmates 'by taking primary
responsibility for them while she is escorting them about
the institution, and by taking primary responsibility for
counselling them' concerning their behavior while at the
work stations. Wh~n she is escorting inmate~,often she
will be in hallways or in the medical office where there (
are correct~onal officers, but she is the one who, is
taking primary responsibility for the control of the
inmates under escort. With respect to counselllng the
inmates, it is important to distinguish between' the
instructions the inmates receive about, the particular
jobs to which they .are assigned, ~ndthe instructions
theY, receive concerning their general behavior. For
example, in' the kitchen, a non-inmate member of the
kitchen staff will tell the inmates what to~eel,wash,
etc. But it is the grievor who will counsel the inmates
how to behave generally - what is expected in the way of
cooperation with the other members of the kitchen staff,
and so on. And it is the grievor who has to deal with any
behavioral problems.
And the inmates she' directs are 'engaged in
beneficial labour'. Though she herself does not operate
the kitchen, t~e laundry, or the gardening service, h~r
contact with the inmates 0n the IWP is part and parcel
of the labour itself. The 'engagement' in beneficial
labour involves the whole IWP process -, selection,
escort, monitoring, counselling, and performing the work
itself. The grievor's contact with the inmates is not
~imply part of the general care and custody undertaken
by correctional officers. Her contact with the inmates
is for the purpose of having them perform beneficial
labour. II
In the Cannon case, Mr. Collict dissented on the basis that
". ..there is a very great diffe~ence between directinq inmates, as
opposed to directinginmatesenqaqed in beneficial labour. II He
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reasoned that escorting, interviewing, etc., do not meet the clear
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requirements to direct. inmates when they are working (engaged in'
beneficial labour).
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Counsel for the employer directed us to se\,eral Grievance
Settlement Board classification cases which considered the effect
of the custodial responsibility allowance on classification
(Semenciw et al, GSB #1448/91 (Barrett); Braund et al, GSB #39/89
(Slone); and Elrick et al, GSB #10/85 (Dissanayake)). In Semenciw,
at page 11, the Board said:
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"Appendix 8 makes it clear that the custodial duties for
which the allowance is paid are in addition to the duties
of the positions to which they are assigned. Those duties
are additional duties not 'set out in class standards. To
that extent they expand the class standards."
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It was emphasized in Braund, at page 27, with respect to grievors
in the cook classification, 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 2a'nd3 jobs.. The additional
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responsibili ty for inmates is precisely, the, added component that
the CRA was designed to cover. II The Board in that case also
described the CRA,at page 26, as: "a consensual quid pro qUO for
employees whose jobs, have beeR given an added component which
'probably is not reflected in their classification, but where the
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· bottom line' responsibility of the job, as described in the
standards, has not changed."
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Employer counsel referred us to the preamble to the class
standard for Rehabilitation Officers, and notes that the thrust of
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the position is to work with inmates in their vocational,
educational and social rehabilitation. As set out in the preamble,
typical duties include: "counselling according to individual need
(analysis of case history, reports of psychologists, social
workers, correctional staff~ interviews; assessment; devising and
implementing a rehabilitation plan; motivation and follow-up
proced~res); determination of the suitability of the home
environment;
development
and
utilization
of
employment
opportunities; placement in schools; regular visits to check on
progress; emergency calls; discussions with law enforcement
officials; recommendations to the appropriate Parole or Advisory
Board; recommendations or instructions to return to custody;
conducting, a f'ollow-up programme for those released (from the
, Department I s clinics; securing foster homes/group homes for
juveniles not returning to their own homes. These officers may also
be required to act as t~e Departmental representative at meetings
with other agencies such as the Regional Diagnostic and Assessment
Units under the Department of Health." Employer counsel asserts
that the entire thrust of' the Rehabilitation Officer series is
inmate
focused
and
directed,
unlike
the
aforementioned
classification cases involving cooks, store clerks and maintenance
trades, all of whom had a job to do unrelated to inmates but with
the assistance of inmate labour. Thus the exception in paragraph
'(b) of Appendix 8 applies to these rehabilitation officers in that
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their positions are "covered by classes which already take into
account responsibility for the control of inmates". Furthermore,
they do not dir~ct inmates while they are working, nor are they
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group leaders as required by paragraph (c) of Appendix 8.
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Union,counsel, in examining paragraph (b) of Appendix 8, notes
that all of the examples given of classes which already take into
account responsibility for the control of inmates fall in the
Correctional Services classification category, but Rehabilltation
Officers, are classified in the Administrative Services category.
Counsel argues that the category 'of people meant to be exclu~ed
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must have something in common with the examples given in the list.
People in the Correctional Services category earn more than people
in the Administrative Services, cat~gory ,and therefore it should
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be assumed that' the Administrative Services wage rate does not take
the custodial responsibility into account. This argument is
substantially weakened, howeve,r, when one notes that Probation
Officers are also included in the Administrative Services category,
and that the full class title of R.O. 2's is Rehabilitation Officer
- Correctional Services.
Counsel also argued that M~. Streitenfeld's duty of providing
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advice, guidance and assistance to the Community Resource Centre
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and by recommending changes to existing methods and procedures at
the Centre falls within the definition of-a Group Leader, as set
out in paragraph (c) (ii) of Appendix 8. To obtain credit as a Group
Leader ,in the civil service, one must be leading groups of fellow
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employees and not giving technical advice to outsiders. That branch
of the argument must fail.
with respect to "directing inmates' engaged in beneficial
labour It; counsel argues that the interviews with inmates, the
counselling of inmates regarding behaviour, the visits to the work
sites and the laying of misconducts all amount to directing inmates
engaged in beneficial labour, as in Cannon.
We do not agree that either of these grievors can fit himself
within the parameters of Cannon. These grievorsdo not take primary
responsibility for escorting inmates about the institution. 'They
do not take primary respons~bility for counselling inmates
concerning their behaviour at the work stations. They do not have
primary responsibility for dealing with behavioural problems at the
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work site. They do not spend 70% of their time directly involved
with inmate workers while they are working or going to and from
, work. In the c~se of Mr. Streitenfeld, hawould seldom even see an
inmate working because all work is done away from the institution
and the inmates -are supervised while working by a variety of
people, but never by Mr. Streitenfeld. Mr. Holder spends about 30
minutes a day visiting all of the work sites, but this, in our
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view, does not constitute directing inmates engaged-in beneficial
labour. Neither grievor has custody of the inmates or performs
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escort services, although it could be said they are "in charge" of
the inmates during interviews. We find that in order to be eligible
for the custodial responsibility allowance, a person must, for the
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majority of his working time, direct inmates while they are engaged
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in beneficial labour. In Ms. Cannon's case, she spent 70% of her
working time having primary responsibility for inmates while they
were working or engaged in work-related activities, such as being
medically examined to determine fitness for work and going to and
from work, as well as behaviour management.
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Furthermore, we think that these grievors' positions are
covered by classes which already take into account responsibility
for the control of inmates. Their whol~ job descriptions are
inmate-focused ... they would have nothing to do if there were no
inmates to work with. They are unlike the cooks, storekeepers and
laundry workers who have a job to do entirely unrelated to inmates,
but get the custodial responsibility allowance because they direct
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inmates i~ assisting them.
Accordingly, the grievances must be dismissed.
Dated at Toronto this 5th day of August, 1994.
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A. Barrett, Vice-Chairperson
I Dissent "Dissent Attached"
J. Carruthers, Member
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R. Scott, Member
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Dissent of Board Member J. earnithers
, RE GSB F="ILE II 590/92 ,- 591/92
\ HOLDER + STREITENFElD
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I must dis~ent from the decision, of the ,majority in this grievallce. I would allow the
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grievances and. order' the Custodial Responsibility Allowance ,be pai4 to the grievors from
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20 days prior to the date they filed their grievances.
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With respect to ,Mr. Holder, his' duties arei~distinguishable from' tlioseof the grievor in' '
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Cannon. He.is responsible for sel~cting new inmates for 'the InstitiItion' Work, Program
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(includillg a review of the ~ocumentary record and 2 interviews with th~ iIimate), counselling
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th~m' concerning the rules governing their. conduct while' in the program, and the
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consequences of failure to comply with the rul~s, and checking the ~qrk stations rlailyto
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ensure the'inmates are doing the,ir assigned jOQs. :IDs uncontradicte? evl,dence was that these, '
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duties took 3;, majority of his working time.,
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The majority someho~ concludes that Mr. Holder does not take "prim~ responsibility" for ' .. .'
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.: '.t~ese irIDiates while he is engaged i~ these duties; In the Cannon case, the maj<?rity held that .
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. the grievor ,directed the inmates because she took primary responsibility for 'control of ~he
iIlI~la~eS while they were' in ,her, presence and (or counselling. the~ concerning their
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,behaviour"~hile at their work stations, despite the facttha,tcorrectioAal officers might.be
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in the vicinity while the inmates were in her presence. Mr. Holder's unc9ntradic~ed eVidence
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. was that the 'inmates met with him out of earshot and line of sight of ~orrectionalofficers, '
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and that, on, occasion, he,had tophysically control an inmate; aswe~l as laymisconduct
charges against inmate.s. As well~ he was able to cOntrol inmate behavi6:ur while at the work
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the control he exerts over the ,inmates in the Temporary Absencf Program an~ the
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Community Work Program on behalf of the. Ministry of Correctional Services does not j
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require his physi~ pre:sence in the same piace' as' the inmate~ In a~ditiontothe duties
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redted in the majority decision, it is the uncontradicted evidence th~t,in addition to his
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conversations with the Director, Mr. Streitenfeld has many telephon~ conversations with
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inmates'in the program concerning their b~haviour and. its consequeJces.
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No other employee' of the Ministry ,has primary, responsibility for the inmates in these
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programs while Mr. Streitenfeld is at work. It is he' who mus't d~cide, if an, inmate's
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misbehaviour warra~ts the laying of a misconduct and removal from! theT AP /CWP and
return to the institution. "Directing,inmates" has been defined in the qtnnon case as taking
primary responsibility for control of the inmates while in th~ employ~e's presence (which
Mr~ Streitenfeld does during his interviews with the inmates) and fori counselling inmates'.
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,about theirbehaviour,which can lead to removal of an inmate from t~e program. Nothing'
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about the function or" couriselling and removal necessarily requi~,es that the person
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performing the function be in". the iIunate's presence. Rather, it i$ sufficient. that the
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employee's duties require him'to perform this functi~n for inmates p'erforming beneficial
labour. Accordingly, with respect to Mr.' Streitenfeld's grievance, I would also ailow it.
Finally, the majority finds that the grievors' positions are covered by tlasses which already
take into account responsibility for the contral of inmates. Nowhere:in the class standard
for tbese Rebabilitation Officers does it say that one of their duties is t)1e control or custody
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station by cOunselling inmates, and by USing his power to pennancmtly temove inmates from
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the work program, something which correctional officers and the i.iUnate work supervisors
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could not do on their own. In my view there is nothing in the eviden~e' to distinguish Mr.
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Holder's duties With respect ~o inmates from those of the grievor inC~on and therefore,
I find he has primaryiesponsibility for the inmates' while the}:' are in tllspresence and for
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coiInselling,the inmates about their behaviour. whileon,the work pr6~am.
The majority lists working and work related activities, such as being m~dicallyexamined for
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fitness to work and' travelling to and from the work stations, as' well as' behaviour
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management, as examples,ofininatesengaged in beneficial labour. H6~ever, in the Cannon
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case, the majority at page 3 defined the words "engaged in beneficial Uabour" as follows:
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"Though she herself does not operate the kitchen, the la;undry,
'or the gardening service, her contact with the inmates bn 'tpe
,IWPis part and parcel of the labour itself. The "engag~ment"
in beneficial labour involves the whole IWP process - sel~ction.
escort.'m~nitoring. counselling. and performing the'worl( itself.,
the grievor's contact with t!Ie inmates is not simply part: of the
general care and custody undertaken by cotrectional officers.
Her contact with the inmates is for' the purpose of having them,
p~rform beneficial labour." '
Similarly, 'Mr. Hol~er's contact with the inmates is for the purpose of ~aving them perform '
, beneficial labour and accordingly, .J would allow his grievance.
With respect to Mr. Streitenfeld, the ~ajority appears to base its findin'gs upon the fact that
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of inniates. The majority alludes to the fact that' Probation Officers: are also in the same
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Administrative Services category as,the Rehabilitation/Officers. How~ver, no evidence was-
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presented concerning the class,standard for Probation Officers and, in[fact, it was nqt raised'
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before,the Board until Employer counsel's final submissions, at whic? time Union counsel,
objected that Employer couns~l was intfoducing,new evidence~ and his :~bjection was upheld. ,
Accordingly, in my ,view the Board cannot rely upon any evidence ~oncerningProbation
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Officers"as it was not properly before it.
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The fact that' all, of 'the examples uSed in Appendix 8 ,of classifications which take" into
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account custodial responsibility are in the 'Correctional ,Services dategory is important
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because it is probable' that classifications with similar duties wer~ grouped into these'
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categorie~.The fact t~3;t the words -' Correctional Services appea~ after Rehabilitation
OffIcer'is not significant.: It is worth noting that below'the grievor's classification in the list
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of classifications" in ,the Administrative Services Category the 'classifi~ation . Rehabilitation
Officer ~,Healthappears.Obviously, thewordsaftet the dash are m~rely there to indicate '
the Ministry in which the respective. Rehabilitation Officers are employed. As there is no
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eXpliCitrequiremchit in the class 'standard that the grievors ar~ respobible for the control
, " ' " ,t
of inmates,.I find that the grievor's classification did not take into acceunt responsibility for
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the control of inmates, and for this. reason and the reaSons set out above, I woudldallow '
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these grievances.
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