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HomeMy WebLinkAbout1992-0595.Moore et al.96-01-15 ./ - ~-.::: ~ ONTARIO . CROWN EMPLOYEES ~ : EMPLOYES OE LA COURONNE DE L'ONTARIO II GRIEVANCE ' II". . SETTLEMENT BOARD . COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, SUiTE 2100,TORONTO ON MSG 1Z8 Hio. RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ON) MSG 1Z8 GSB # OPSEU# BETWEEN. BEFORE . FOR THE GRIEVOR FOR THE EMPLOYER / HEARING .:: ."\ ,1' TELEPHONE/TELEPHONE: (416) 326-1388 FACS/MILEITELECOPIE: (416) 326-1396. . ; 595/92, . 2653/92 92A823~~1~831, 92G731 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Moore et al) - and - Grievor The Grown in Right of Ontarip (Ministry of Correctional Services) R.J. Roberts' Employer Vice-Chairperson .' . N. ColemaI1 counsel Gowling, Strathy & Henderson Barristers & Solicitors M~ Mously ~. Grievance Administration Officer Ministry of the Solicitor General & Correctional Services January 5, 1996 " ;1". ( - .1 'A!WARD . , .. I At the outset of this arbitration the employer made a preliminary objection to jurisdiction that, in - - ' - essence, -amounted to a motion for summary judgment. Counsel for the ~mployersubmitted that even if all of the facts alleged by the union were to be taken as established in its favor, they still, , ' would not disclose an arbitable issue. The reason, it was submitted, wa~ that the grievances in , . _ - I question were classification grievances that were rendered inarbitrable ,by the s~ctoral . ' framework and local appendix executed by the parties on August 1, 19p3 and ratified by the - .,/. " , . , union on August 10, 1993. It was submitted by counsel for the~on; however, that the grievances were not properly characterized as classification grievances;! rather, they were salary , . ., . I, . . . . ' administration grievances.. F~rreasons which follow, it isconclud.ed th~t the most appropriate _ . . , " ." charac~erization of the grievances at hand is that they are, indeed, class~fication grievances th~t were rendered inarbitrable by the sectordlframework and local append~x. Accordingly, I must . decline jurisdiction. _. I F or purposes of dealing with the preliminary objection, both' parties agreed that! could proceed , . - J .' \ on the footing that the following facts had been established: ./ ~.." (1) The grievors were employ.ed in the unclassified service as Correctional Officers prior to appointment to the classified service a~ Correctional Officers. " / . , ., ( 2 (2) After appointment to t\1e classified service the grievor~ completed the . '.' , 1 . . . Ministry's training program for Correctional Officers within six months. , '.1 .. . , . (3) The grievors had a~ least one year of experience as .Cotrecti6nal Officers atthe . time they completed the, above training. (4) The grievors weI,:eplaced on underfill assignments for:a one year period. following their appointment to the classified service. (5) The grievorswere not restricted in their work: assig11IIientsas Correctional Officers in any way after ,appointment to the classified _service. . , . . . > ! . . '.. Also entered into evidence were the the class standards for the Correctional Officer Series. These' . read, in pertinent part, as follows: I ~Rrl C:or:neuonal S.n1~. GJlOIJ1OI <:0:-01 Cornct1onal. Serv1c.. SEllI%S I C:onecl:1onal Otucer ~s COC!I 50561 to 50574: ,/ .,-' ,. 'I CLASS, STAKllAiUl: 1 PREA.'filLE C01UUX:TIONAL OFFIC~ S~:rIS . KIND OF 'otlRX COVDUJl: .nus c:l.1.u series ~oven the positions of enployees engaged in, or auperrisiDc the UMI, ae~\Irity, ,o~t~l and rehabiliutiollof ~tu in a.duJ.t Corre~1:1on.&l WtitutiClIlS.a.nd ProVU1'J.al Ja.ils. 1Il1llO~t positiolll!l' these employees are re"uired to 'oIOrlt on a l'ClUtj,ng shift II.... is . AliocA TIOl'! FAC'l'ORS: . 1be asaignmeut. of pos:l.tiorul to the levels vithi4. the series 'is direc~y rel&ted to thealloca.tion ra.~tors def1Ded in the ,1a.sses ,overin&,the ae~or adm.iDiatntin poaitioll&1: u,h institution - ,i.e. lleform.atory SUp'er~7elld~nts .or Jail Superintendents:. these factors are refiected'1J1 the responsJ.biliues c,r w the Corre,ticn.a.l .Off'i'en vithi4 the inatitudon. They are as follows: 1. . The type or innate assigned to the institution.. .~ ". (- " -' 2. Theeap&ci~ of the iAstitlltion. 3. The a.at1U'e and enent of the progrlUll(s) of the wti~tion. Then !actors lIIusure the degree of rellpon3ibility of the Positioaa above. the wrlcillc left 1. . ' CE:mUL : ,. . . . ~'. CorNcdoa.al Ot'ticen ill adult lIIale wtitlltiOI13 or thou sployed iD correctional urvices for lIIales in jails, wbo do Dot successfully complete the required Departmental staIf tr:U.a.in.g course and practical.tra~ing ",ith.in ODe year of appoilltment !!!!!!! ~e rtleased, or at the discretion of Deputy :tiAi.s~er '!!!. be assigned to other duties for wbic:.h they can qualify. : ' All Correctional Officers may be called upon frolll tiIIIe to t~e, to pertor: higher level duties or to supervise less e.:'tilerienced sta!!. 'n\ey aiay also be required to participate in group discussions and counselling sessions under supervision. ., . .. S'rllUC':'UllE OF 'rIlE SERm: Len12 ,. , the. trainill& level ,. the ful+Y qualified ,",orkine . level - the Urst supervisory level, . , , . . i' ,. iIll:reasiJ:lc degrees of suparvisory respoll;'ibUitY Level-l Lnel 3 Levels 4 to 1 CUSS ST.ufDARIl: . . -b . CautECTIClfAL OF'FICD\ 1 -.t~ . This class covers th~ positioDS ot .ulplo~es who arelUlll.erg~ing'training i.o. & varie~ .ot Correctional OfUcer duties. .I:u.tially, they work .imder close supervision, but with experiellClI, they undertake progressively respolUlible assicnmenu iD the various fWICuollAl areas of an -wticu-don. ! - - I . This cass also covers posidoDS ot Correctioaal Officers who control IlIAi guide female inmates in jails where felll&le illlll&tesare present for less tha.n 27 S days per year, based on a. five year average. These od'icers I are assigned to other duties durine the 90, or 1II0re, days per year when there .ar~ no!emale inmates in the jail.' .1 S'rAFFlSCS'rANDARDS: . Basic: See prelLlllble. \ / Revised Januarv 1. 1970 I , I ,_ I "I Other do~uri1en~ary evidence included portions of the employer's Manu~1 of Administration and directives regarding the definition and administration of underfill assigtunents. Also entered in~o ') evidence were a series of documents relating to the appointments oftwp of the grievors, Mr. R. W. Kennett and Mr. William Howe. It does not appear necessary to go Jnto these documents in any great detail; they essentially tend to show that prior to the execution of the sectoral " "-.~ ~:_~ 4 . . framework ~nd local appendix, a casual approach was taken toward the. question whether the ~ - .- - : + . - removal of an underfill assignment constituted an upward'reclassificatlori or an upward s'alary adjustment for an employee who was already in the higher classification.: This is understandable. Prior to the execution of the. sectoral framework and local appendix, it se~med to be of little. ., , - f 'J . . - - - I consequence to the employer or the union which characterization wasapplied to the removal of . ~ . . . . , . an underfill assignment. Now; however, which characterization is applied means the difference between' having and riot having' an arbitrable grievance. ;. .1 The, dilemma -created by the previous casual approach of the parties to th~s question was captured ., . in Re A/ani/Christopher, G.B. B.No.1336/91 (Finley). In that case, th~grievorswere T. A. 2's / who had succ~ssfullycompeted for T. A. 3 positions. They were, however; required to take these . . , .,. 1. c , . positions on a,n underfill basIs and accept the wages of aT. A. 2 until th~y had completed a. i ' ! ; ~ period of training. Subsequently, the question whether they were nevertheless always classified as T. A. 3's became important. The,Board said, in pertinent part: I . The underfill program'places a ,condition ontheparticipaht. The question is, whether this is acondition precedent ora condition subs~quent. That is; must the. condition be fulfilled before the individual is promoted tq the posi~on or, does the fulfilling of the condition corifi'rm that person~n the position to. wqich he or she has already been promoted. Nothing in the poli~y orelse~here mandates that/it should be one or the other. Each situation is determinative of whether or not it isa / condition subsequent or precedent. ... Id. at 22-23. , . ! . The Board was unwilling to make a general pronouncement regarding whether removal ,of : . _ f.. . , . underfill assignment constituted an upward reclassification. Each. case, the Board said, turned on ,\ "\ ---- , ( 5 its own facts. On the facts,- the Board concluded the grievors alwayshadbe.en classified as t. A. ) 3's,subject to being confirmed in that classification upon completion or:their training. . . ... \ " ' - In Re Aitken and Ministry of Health (1'993), G. S. B. No. 678/87 (G~rsky), the Board once again adopted this fact-specific approach. It concluded, inter alia, that the re~oval of an underfill assignment constituted an upward reclassification from Clerk 2 to Clerk 3 because, in essence, - t _.. the union had so alleged in its statement of facts and there was no evidence that w~uld permit the union to resile from its earlier position. Id. at 10. As a result, the Board said, the case was a ciassification ~ase, that was r:endered inarbitralDle by the sectoral frame~ork and the local appendix. Id. at 27-29. i ': .. . j '..' In the context of Corrections, the Board has already considered the que~tion whether removal of . .' . I ., ' , . . an underfill assignmerit requiring payment at the C.. O. 1 level while on jp~o~ation and trai~ing in \- a C:O. 2 position, constitUted an upward reclassification to ~. 0.2. In Re Bishop and Mini$try of . . I . . . . Correctional Services (1991), G.S. RNo. 1432/88 (Fisher), the Board concluded that it did, \ . saying: I . .. ;. ' \ In effect the unionis stating that once a C. 0 1 has completed his training and ' probationary period, he is in fact performing the duties df a C. 0.2 and should be paid accordingly. This is an ingenious and perhaps valid! argument but in reality it is a classification grievance. The employee is in effect saying that he is performing a higher rated job and should be compensate:d accordingly. ... /d. at 4. .. ,eecause the grievance as originally filed did not claim reclassification and, in fact, the issue of ',- . ~..# . C . .. ! l;y. 6 reclassification arOse for the first time almost two years after the filing drthe grievan'ce, the Board refused toconsiderthe case as a classificationmatter.ld. at 5. 'I' ,'. . f:- - .' Counsel for the union submitted that the observations of the I!<?ard in Bi,shop, supra, were not . I. . t ' determinative of the issue before me be~ause at the time of the decision ;it remained possible for ,. . I . t . classification grievances to the arbitrated. Forthis reason, counsel sugg~sted, the Boa~d might\ I ! , not have given the issue the seriouscpnsideration that it now warranted.! That may' be; however,. .' it seems to me that even ifIwer~ to apply thefact~speCific approac;h to characterizing'removal of , . I.. . , - ' ~, . . \ underfill as in Re A/ani/Christopher andRe A~tken, supra, the same tes~lt would be reached. / ~ . , Thedass standard for the Correctional Officer series expressly states in'its preamble that the , ',- :..--' .. - .' !- . classification ,of C. a. -lis the ,training ievel and the classification of C. p. 2 is the fully qualified working level. TIle ciass staildard for'C. .0.1' bears this out. Apartfromlperforming the, minor , .. . ..' ) ,. role of covering officers who on occasion are ,required to control and guide female inmates, there . _ j _ . \. . . . .'. ,. is no other reason for the existence of the C. O. 1 classification. The C. O. 1 classification has .. . I ' '\ existed in this form since 1970. In light ofthese factors, it seems to me ~o be impossible to - I ' . conclude that correctional officers who are on probation and in tr~iningj for the w<;>rking level of , " j ! C. a. 2 are'already C.O.2's.To do so would be to read out of the classification.ofC. O. !.its. , . , main purpose. There do not appear to be any grounds for taking such a drastic step. .1 ., In this regard, iUs noted that in both Re A/ani/Christopher and Re Aitk~n, supra, the I . classificati~ms that were alleged to have been assigned to'the grievors <<rhile. occupying their )' A ..- , . it ;:, 7 . - I ~ _. , positions on atl' underfill basis apparently were working levels in their ?wn right and not . , classificatipn levels devoted primarily to training positions. This, it seertis to me, constitutes a' . . 1 .. . , critical distinction and one th~t sets the result in this case apart from that! reached in ' . . " A/ani/Christopher. Accordingly, it must be concluded that during ,the period addressed in th~ grievances; the grievors were, in fact, classified in the classification of C.O. 1. This me~s that their claims that . ' ,I . . i . they should hav~ been paid as C:O. 2's because theyhadcomple,ted their tr~ini~g and probation, . . , are classification grievances claiming reclassi:tication to the C. O. 2 le~e~. As such, they are~, . , inarbitrablc under the relevant provisions of the sectoral frameworkandilocal appendix, and I , ! . .. must decline jurisdi~tion. . ,. . , -' , , .1 Dated at To~onto, Ontario, this! 5 day of Jan~, l' 996. ,. , I Roberts, Vice Cl)air , i \ \