HomeMy WebLinkAbout1992-1448.Semenciw et al.92-10-05
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.J ONTARIO EMPLOYES DE LA COURONNE
" CROWN EMPLOYEES DE L'ON TA RIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT ' ,
REGLEMENT
BOARD DES GRIEFS
reo DUNDAS STREET WEST SJITE 2100 TORONTO ONTARIO M5G IZ8 TELEPHONE,TElEPHO/'E I~ 61 ]26- 388
180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSIMILE TELECOPIE 14161 J26- 396
1448/91, 1452/91,
1453/91, 1454/91
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Semenciw et all
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE A. Barrett Vice-Chairperson
M. Lyons Member
D Montrose Member
FOR THE C Dassios
GRIEVOR Counsel
Gowling, strathy & Henderson
Barristers & Solicitors
FOR THE J. Ravenscroft
EMPLOYER Grievance Administration Officer
Ministry of Correctional Services
HEARING February 5, 1992
May 4, 5, 1992
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OIl
DEe r S ION
This is a classification grievance of four grievors who are
employed by the Ministry of Correctional Services at the Metro West
Detention Centre in Toronto They are presently classified as
follows
- David Olsen, Storekeeper - Clerk 6 Supply,
- Mike Semenciw, Clothing Clerk - Clerk 3 Supply,
- John Dutka and Doug Houston. Store Clerks - Clerk 2
Supply
All grievors say that their jobs entail extensive supervision
and instruction of inmates. as well as security responsibilities.
so that their core duties are substantially different from those
set out in their Clerk Supply class standard They do not seek to
fit themselves into any other specific standard but ask that they
be re-classified by way of a Berry order
These employees come under the General operational Services
category, the relevant portions of which are set out below
"This Category includes:
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- positions inVOlving the warehousing of
materials, equipment and supplies and including
such related clerical duties as the preparation
and checking of invoices, orders, bills of
lading and inventory records
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This Category does not include
- positions involving the care and custody of
patients, wards and inmates of psychiatric and
correctional institutions or residents of
Mental Retardation facilities where the
personal care and custodial services are
continuing and functionally unspecialized ..
Subsumed under the General Operational Services category is
the Clerk Supply series in which these grievors are classified The
initial portion of the preamble is set out below
.. PREAMBLE
CLERK SUPPLY SERIES
These classes cover the positions of employees who
perform a variety of clerical, manual, administrative repair
or purchasing functions that are common to stockkeeping
operations in the Provincial Government Service If any
employee specializes in only one of the many tasks involved
in the operation of a stockroom, the position should be
classified in another series more appropriate to the type of
work For example, positions concerned entirely with the
clerical recording of transactions should be allocated to the
Clerk, General series Positions in which purchasing is the
main function should not be classified in this series.
Many factors, such as the maintenance of the necessary
ledger or other records, inventory control, establishment of
minimum - maximum requirements, etc , are common to all
stockrooms and vary significantly only to the extent that the
size of the stockkeeping function varies Thus, the overriding
criterion in making allocations in this series is the size,
as defined in this preamble, of the stockkeeping function
rather than any variation in the clerical or administrative
functions associated with it
Supervisory positions covered by the classes Clerk 3 to
Clerk 6, Supply will be assigned to one class higher in the
series if purchasing, as defined below, is one of the
functions requiring a minimum of 20% of the working time
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DEFINITION.
Size of Operation
Because of the tremendous variation 1n the nature and
organization of stockkeeping functions between departments,
the number of staff required for the operation of a particular
unit is the only practical basis of comparison for
classification purposes, in all departments except Health and
Reform Institutions. In the latter departments. patients or
inmates are often employed in stockkeepinq operations.
Consequently, in Ontario Hospitals, the size, in terms of bed
capacity, is the criteria used The size alone of a Reform
Institution ignores the possible existence of industries,
which complicate the stockkeeping function, therefore the
value of annual stock turnover is used as a basis of
comparison for the determination of level ..
It is not in dispute that the grievors generally perform the
stockkeeping functions set out in their class standard and in their
individual job descriptions. As stated earlier, their dispute is
with the extent they supervise and instruct inmates and are
responsible for their security They say that the preamble to the
Clerk Supply series does not encompass such duties, all it says is
that "inmates are often employed in stockkeeping operations" It
does not say that the clerks should direct, supervise and train
them
The employer argues that these employees, in addition to the
regular salary for their classification, receive a custodial
responsibility allowance of $2,000 00 per year to reflect their
additional responsibilities with inmates Appendix 8 to the
collective agreement sets out how and when this custodial
responsibility allowance is paid. as follows:
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"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 Communi ty 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 workers or psychologists,
(b) the positions to which the employees are assigned are not
covered by classes which already take into account
responsibility for the control of inmates or wards, such
as Correctional Officers, Industrial Officers,
Supervisors of Juveniles, Observation and Detention Home
Workers, Recreation Officers (Correctional Services),
Trade Instructors and Pr9vincial Bailiffs,
(c) (i) they are required, for the major 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 major portion of their working
time, for operations involving the control of a
number of inmates or wards engaged in beneficial
labour,
and
(d) they are responsible for the custody of inmates or wards
in their charge and are required to report on their
conduct and lay charges where breaches of institutional
regulations occur "
The four grievors, with Mr Olsen in charge, run a warehouse
area which stores food, cleaning supplies, toiletries and inmate
and staff clothing They are assisted by about four inmate helpers
whom they assign as they see fit, primarily doing the manual labour
jobs such as moving supplies from one area to another and compiling
orders of supplies to go to different areas in the jail They train
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the inmate helpers to use material handling equipment, such as
palette movers, and occasionally allow an inmate to use a tow
motor They instruct the inmates in safety measures, including
WHMIS The clerks take their inmate helpers to the loading docks
to receive goods, and may even take them outside the loading doors
to a storage trailer just outside They escort inmates moving goods
throughout the institution and must always be prepared to intervene
where security or safety problems arise. sometimes the clerks are
asked to comment on inmates' work habits and attitudes to the
parole board or the people running the temporary absence program
The inmates do not do any of the considerable paperwork involved
in storekeeping, but they are assigned various other tasks in
accordance with their capabilities The grievors say they train the
inmates in good work habits and warehousing skills in order to
improve their employment opportunities, and informally counsel the
inmates with regard to their personal problems
The employer responds that the grievors overstate the extent
anq. degree of the supervision and instruction they provide for
inmates The employer says that only minimum risk inmates are
assigned to the stores area, and each is there for a short period
of time ranging from a few weeks to three months, so opportunities
for instruction are limited The inmates are taught none of the
paperwork aspects of the entire operation and are generally used
as unskilled manual labour The employer says that the direction
and control of these inmate helpers fall squarely within the ambit
of the custodial responsibility allowance
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There is considerable Grievance Settlement Board jurisprudence
dealing wi th the very issue of when training and supervision of
inmates, added to the regular duties of a classification, can take
the incumbent out of his class standard The union relies on
Townsend, GSB 22/85 (Brent) , for the proposition that whether or
not the employee is paid the custodial responsibility allowance is
irrelevant when determining whether the job is properly classified
At page 25 of that award, the Board said
"Clearly, whenever the allowance is paid, the Employer
is recognizing that the employee is called upon to
perform custodial duties It assumes that there is a
proper classification of the employee's job before the
allowance becomes payable If the job is not properly
classified, the fact that the allowance is paid does not
correct that wrong. We do agree, though, that if an
employee's job is properly within a class series which
does not recognize such responsibility as being part of
the job, then the fact that those responsibilities are
assigned when the job is performed within a correctional
facility should not enable the employee to claim that his
job should be classified in any of the 'classes which
already take into account responsibility for the control
of inmates , "
In that case, the grievor, who was classified as an Agricultural
Worker 2, fell outside of his standard because it encompassed "only
group leaders of two or more employees", and the grievor did not
supervise any employees However, he did supervise a gang of about
eight inmates who, with him, ran a substantial greenhouse
operation The Board felt that the best fit for the grievor was in
the Industrial Officer class series because they are charged with
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running an enterprise to produce certain end products using the
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labour of inmates while teaching basic work skills and work habits
The Board found that the grievor was wrongly classified and
originally ordered the employer to create an appropriate
classification in the form of a Berry order The grievor was not
satisfied with the employer's compliance with the Board's order and
requested a second hearing The Board then ordered that the grievor
be placed in the Industrial Officer classification which he had
originally sought
In Braund, GSB 39/89 (Slone), a group of cooks at a
correctional centre grieved that their jobs had evolved from merely
preparing and serving meals at the institution to that of training
and supervising inmates in those tasks and thus they had moved out
of their assigned classification That panel of the Board reviewed
Townsend and several other cases and concluded that Townsend was
to be distinguished on the basis that the grievor there clearly
fell outside of his class standard irrespective of his custodial
and training duties The Board said at page 26
" where the classification is prima facie
appropriate, except arguably that it does not recognize
the full dearee of custodial responsibility allocated,
it is our view that the payment of the eRA is relevant
The eRA is part of the bargain between the parties It
is a supplementary allowance for supplementary duties
performed. It is the grievors' argument that those duties
have changed the character of their jobs. If that
argument were to prevail, then possiblY every jOb
involving custodial duties sufficient to enjoy the CRA
could be held to be wrongly classified That would render
the eRA superfluous More appropriately, in our view, the
CRA should be seen as a consensual quid pro quo for
employees whose jobs have been given an added component
which probably is not reflected in their classification,
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but where the 'bottom line' responsibility of the job,
as described in the standards, has not changed
In this case, the fundamental responsibility of the
grJ.evors 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 2 and 3 jobs The
additional responsibility for inmates J.s precisely the
added component that the CRA was designed to cover ..
In Goforth, GSB 18/85 (Wilson) , the Board commented on the
distinction between "directing inmates engaged in beneficial
labour II , as set out in Appendix 8, and the duties described in the
Industrial Officer class standard to "instruct and direct an
assigned group of inmates" There it was said that it is the
teaching aspect that matters and where, as in that case, the
grievors who were Steam Plant Engineers at a correctional centre
were required to train and instruct inmates on tasks required of
them, "which duties may be recognised as legitimate apprenticeship
time towards Stationary Engineer Certification", the Board found
that those teaching duties were clearly as sophisticated or more
so than the instruction given by Industrial Officers The Board
also found that the grievors were improperly classified in the
General Maintenance class standard anyway because their substantial
operational functions were not reflected in the class standard at
all
Other cases have looked to the focus of the grievors' work to
determine whether it is on the doing of the job itself, or on
instructing the inmates As noted in Braund, supra, it was
determined that getting the meals on the table was the focus, and
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the inmates were simply helping the cooks do their job. Similarly,
in Barklev/Jones, GSB 1520/87 (Kirkwood) , the Board found at page
10
" We find that the grievors recognized their custodial
responsibilities and the philosophy of the institution
to use the inmates for labour in order that they can be
prOductive by using the inmates to perform 'their' work
The grievors delegated their electrical work to the
inmates and supervised the inmates to ensure that the
work performed conformed to Ontario Hydro standards.
Nevertheless, the grievors bore the responsibility for
the electrical work It was up to the grievors to decide
how many inmates were required each day, and how they
would use the inmates It still remained the grievors
electrical work that the inmates were performing and the
inmates were assisting the grievors in the performance
of their work "
In that case, the class standard for the maintenance trades in
which the grievors fell provided that "the incumbents are required
to supervise, guide and instruct their assigned [inmate] helpers"
There the Board found that the grievors comfortably fit into their
classification as Maintenance Electricians
In Ennis, Schuler, GSB 17/85 (Kirkwood), at page 14, the Board
found on the evidence
.. that the work which the grievors performed was
primarilY directed to the maintenance and installation
of electrical work as opposed to being the custodian of
the inmates with the primary focus on their security
Supervision of the inmates is merely inherent to any job
which brings an employee in contact with the inmate "
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In a recent decision Lunn, GSB 595A/90 (Oissanayake) , the
Board reviewed all of the above authorities and found the grievor
properly classified as a Maintenance Plumber because
"While it could be said that the grievor 'teaches' inmate
helpers, it is not as if he suspends his maintenance
duties in order to conduct lessons for them He is either
performing his maintenance plumber duties himself with
the assistance of the inmates, or he is directing the
maintenance plumbing work performed by the inmates In
either case, the grievor remains responsible to get the
job done to the appropriate standards expected When he
is instructing and directing inmates, the grievor himself
is engaged in plumbing work "
In that case, the class standard provided explicitly that part of
the encumbents' duties included "supervision and instruction
of inmate helpers".
In Ennis. Schuler, supra, the class standard included a duty
to ., supervise inmate helpers" There it was found that the duty
to supervise inmates included, by implication, a responsibility for
the custody of the inmates, as the very essence of a correctional
institution is to ensure the custody of its inmates. In
Barkley/Jones, supra, the class standard for Maintenance
Electrician provided that the "incumbent trains and supervises
inmate helpers". In Braund, supra, the Cooks class standard
required them to "direct the activities of.. inmates" Furthermore,
the standard provided~ "All employees in positions classified as
Cook 2 or higher in the series may be required to train and
instruct.. inmates" (The grievors were Cooks 2 and 3 )
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The union seeks to distinguish the instant case from the above
cases on the basis that the class standard for Clerk Supply states
only "inmates are often employed in stockkeeping operations"
This, says union counsel, is an essential and important
distinction Counsel says that what these grievors do is far more
than "direct inmates or wards engaged in beneficial labour" and
being "responsible for the custody of inmates or wards in their
charge and are required to report on their conduct and lay charges
where breaches of institutional regulations occur", as set out in
Appendix 8
In this case, the grievors clearly fit within their class
standards with respect to their stockkeeping and clerical
functions We think Appendix 8 is relevant in assessing whether or
not their duties with respect to inmates is the only feature which
might take them out of their class standard. 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 While
it is true that the class standards analyzed in the above-cited
cases all make more mention of training and instruction than the
Clerk Supply standard does, we also think that the training and
instruction offered by the successful grievors was much more
extensive than that offered by these clerks The inmate helpers in
I the stockrooms do primarily manual labour The clerks can direct
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the inmates as they wish and are not responsible for teaching them
job skills, except to the extent that they might wish to employ the
helpers on some job or piece of equipment that requires instruction
before deployment. The clerks determine whether or not and how much
they wish to teach the inmates, but there is no requirement that I
they do any more than direct their manual labour and ensure their
custody Any necessary instruction of the inmates relates only to
safety standards, and that is not a complicated or time-consuming
endeavour We do not think the instructional aspect in the
storeroom necessarily goes beyond directing inmates engaged in
beneficial labour Thus their additional duties with respect to the
inmates are covered under the custodial responsibility allowance
As the grievors are otherwise properly classified, their grievances
must be dismissed
Dated at Toronto this 16th day ;Z2~
A Barrett, Vice-Chairperson
III Dissent" (dissent attached)
M. Lyons, Member
c:'j \\2< ~
0 Montrose, Member
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DISSENT
GSB 1448/91 SEMENCIW ET AL
OPSEU & MINISTRY OF CORRECTIONAL SERVICES
I have read the dec~sion of the majority and with respect,
I must dissent
I base my dissent on the following facts
1) The General Operation Servlces category (of which the
Clerk Supply Series is a part)
"does not include positions involving the
custcxiy of. inmates of .correctional institutions
where the .custcxiial services are continuing
and functionally unspecialized."
2) The preamble of the Clerk Supply Series recognizes that
"inmates are often employed in stockkeeping operatlons";
however, nothing in the Clerk Supply Series refers to or
describes duties entailing supervision and instruction/
training of inmates This is different, for example, fran
the Laundry Worker Series (Ex 11) (among others) which,
in my opinion, does anticipate supervising and instructing/
training inmates.
The grievors are entitled to receive the Custodial
Resp:msibility Allowance (CRA) when
" ( c) (i) they are required, for the major
portion of their ~rking time, to
direct inmates engaged in beneficial
lal:x:mr "
However, directing inmates is different fran providing
supervision (including assessment of work perfonned and
reports to administration) and instruction/training
SO, it seans to me that the grievors are entitled to receive
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the eRA when inmates are "employed in stockkeeping
operations". but surely receiving the CRA does not require I
the grievors to perfoLm functions that are not anticipated
by their class standard.
For this reason, I would have awarded a Berry order in
this case.
Dated at Toronto this 5th day of October 1992
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Lyons. Membe/