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HomeMy WebLinkAbout2001-0062.Rainhard et al.21-05-28 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2001-0062; 2001-0066; 2001-0067; 2001-0068; 2001-0070; 2002-3236; 2003-2169; 2004-3396; 2005-2498; 2007-0275; 2007-3984; 2008-3437; 2008-1888 UNION# 2001-0521-0006; 2001-0521-0002; 2001-0521-0004; 2001-0521-0005; 2001-0521-0010; 2002-0359-0047; 2000-0359-0024; 2005-0119-0003; 2005-0582-0116; 2007-0234-0050; 2008-0618-0005; 2008-0234-0329; 2004-0234-0459 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Rainhard et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING The hearing was completed with written submissions on November 13, 2020 -2- DECISION [1] This matter involves a number of grievances filed by employees who claim entitlement to the Custodial Responsibility Allowance (“CRA”) referenced in Article 7.8 and, more importantly for our purposes, in Appendix COR2 (“App. COR2”) of the Collective Agreement. The CRA is payable to employees in certain Ministries who meet all the conditions set out in the CRA provision. I understand that at the relevant time the amount of the CRA was $2,000.00 per year and that it has been increased to $2,500.00 per year in later collective agreements. The last section of the CRA provision provides that the CRA “shall be paid according to the base rate of pay for the class involved.” [2] The process of addressing the numerous CRA grievances commenced as early as 2010. The proceeding was concerned with 19 individual grievances and 2 group grievances. The Union had filed a statement of particulars and a supplemental statement of particulars which described the factual basis upon which it claimed entitlement to the CRA for the Grievors. Six of the grievances had been filed on behalf of Electronic Monitoring Officers (“EMOs”), a position that was within the Rehabilitation Officer, Correctional Services class series. Rather than address all of the grievances, the parties decided to focus first on the EMO grievances, with the hope that a decision on whether the EMOs were entitled to the CRA would assist the parties in addressing the remaining grievances. The parties agreed to deal with the 6 EMO grievances as follows. The particulars relevant to the EMO position were assumed to be a true reflection of the duties and responsibilities of the employees who held that position. Counsel made submissions on whether the EMOs were entitled to the CRA based on the Union’s best case, as reflected by the particulars. The Board was then left to decide whether the Union had made out a prima facie case on behalf of the EMOs for entitlement to the CRA. At the outset of these proceedings, the Employer advised that it had certain objections to the CRA grievances, including timeliness objections. The parties agreed that these objections were to be set aside pending the determination of whether the Union had made out a prima facie case. -3- [3] After considering the EMO particulars filed by the Union and the submissions made by counsel at a hearing, I determined in a decision dated March 9, 2011, that the 6 EMOs were not entitled to the CRA. See, OPSEU (Rainhard et al.) and Ministry of Community Safety and Correctional Services (2011), GSB Nos. 2000-0960 et al. (Petryshen) (“the EMO decision”). The EMO decision did not result in the resolution of the remaining CRA grievances that were before me in 2010. [4] During a conference call on April 24, 2017, counsel had agreed that the remaining CRA grievances from the 2010 proceeding would be addressed in a manner similar to the way the 6 EMO grievances had been addressed. The only difference was that the grievances would be dealt with by written submissions. The Union’s written submissions based on the previous particulars in support of the remaining grievances were filed in 2019. The process for addressing these grievances was delayed further until Mr. C. Bryden took over as counsel for the Union in 2020. It was around that time that counsel agreed during a conference call to a timetable for the completion of the written submissions. [5] The outstanding grievances now before me consist of 12 individual grievances and one group grievance. The grievances were filed between November 3, 2010 and May 13, 2008. It is unnecessary to decide Mr. Moffatt’s grievance, given the indication from the Union that he did receive the CRA. Accordingly, Mr. Moffatt’s grievance dated March 18, 2008 (GSB File No. 2008-0144) is hereby dismissed since it is moot. I note that the Union indicated in its particulars that the Kesner Group grievance dated February 7, 2008, had been settled since the grievors were in receipt of the CRA. The previously filed particulars had set out the duties and responsibilities of the remaining Grievors occupying the following positions: Temporary Absence Pass Officers/Coordinators (3); Classification Officers (4); Intermittent Coordinators (2); Library Technician 3 (1); Grounds/Maintenance Worker (1); Cook 2 (1); and, Cleaners 2 (Williams et al. dated May 13, 2008) (8). [6] I find it unnecessary to refer to the written submissions in detail. As one -4- would expect, Union counsel argued that each Grievor met all of the conditions set out in the CRA provision, thereby entitling the Grievors to the CRA. On the other hand, Employer counsel submitted that each Grievor failed to meet at least one of the necessary conditions of the CRA provision and he therefore requested that all of the grievances be dismissed. I was provided with the following decisions: (OPSEU (Rainhard et al.), supra; OPSEU (Cannon) and Ministry of Correctional Services (1991), GSB No. 1714/90 (Samuels) (hereinafter referred to as “Cannon”); OPSEU (Holder/Streitenfeld) and Ministry of Correctional Services (1994), GSB Nos. 590/92, 591/92 (Barrett) (hereinafter referred to as “Holder”); OPSEU (Braund et al.) and Ministry of Correctional Services (1990), GSB No. 39/80 (Slone); Re OPSEU and Ontario (Ministry of Government Services) (2011), L.A.C. (4th) 353 (Dissanayake); and, Ontario (Ministry of Community and Social Services) and OPSEU (Martin), 2015 CarswellOnt 12447 (Anderson). [7] The CRA provision has been included in the Collective Agreement since at least 1984. As set out in App. COR2, employees in designated Ministries are entitled to the CRA if 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 offenders or wards, such as Correctional Officers, Industrial Officers, Supervisors of juveniles, Observation and Detention Home Workers, Recreation Officers (Correctional Services), Trade Instructors and Provincial Bailiffs; (c) (i) they are required, for the major portion of their working time, to direct offenders or wards engaged in beneficial labour; or (ii) as group leaders/lead hands, they are directly responsible, for a major portion of their working time, for operations involving the control of a number of offenders or wards engaged in beneficial labour; and (d) they are responsible for the custody of offenders or wards in their charge and are required to report on their conduct and lay charges where breaches of institutional regulations occur. [8] The EMO decision is the most recent decision dealing with the CRA, even though it was decided many years ago. In addressing whether the EMOs were entitled -5- to the CRA, the decision examined the Cannon and Holder decisions and addressed the requirements that must be met by an employee claiming entitlement to the CRA. As reflected in Cannon and Holder, the focus of a CRA inquiry is often on whether the requirement in (c) (i) had been satisfied, namely whether the employee is required to direct offenders engaged in beneficial labour for the major portion of his or her working time. Since the Union continues in this proceeding to place considerable reliance on Cannon, I find it useful to set out a significant part of the EMO decision. After setting out the duties and responsibilities of the EMOs, the decision continued as follows: [13] In OPSEU (Cannon) and Ministry of Correctional Services (1991), GSB No. 1714/90 (Samuels) (hereinafter referred to as “Cannon”), the grievor was the Coordinator of the Temporary Absence Program (“TAP”) and the Institutional Work Program (“IWP”). The only issue in the case was whether the grievor satisfied the condition in (c) (i) of the Appendix, namely, was she required, for a major portion of her working time, to direct offenders engaged in beneficial labour. The grievor’s claim for the CRA was based primarily on her work with the IWP. The IWP consisted of inmates working at jobs in the institution, such as laundry and kitchen jobs. As Coordinator of the IWP, the grievor’s duties included selecting offenders for the program, which included an interview; escorting offenders to the medical office; escorting offenders to their living quarters; escorting offenders to their work locations; and, checking the work stations to ensure offenders were doing their assigned jobs. She did have the authority to issue a misconduct to an offender. The grievor spent 80% of her time on the IWP and 75% of her time directly dealing with offenders. The Board concluded that the grievor was required to direct offenders engaged in beneficial labour for the majority of her working time. It found that she directs offenders by taking primary responsibility for them while escorting and counselling them. It also found that the offenders she directs are engaged in beneficial labour on the basis of the following analysis, starting at page 4: Though she herself does not operate the kitchen, the laundry, or the gardening service, her contact with the inmates on the IWP is part and parcel of the labour itself. The “engagement” in beneficial labour involves the whole IWP process - selection, escort, monitoring, counseling, and performing the work itself. The grievor’s contact with the inmates is not simply 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. [14] The Cannon decision included a strong dissent from Mr. Collict. He disagreed with the view that escorting and counseling offenders amounted to directing them when they were working. [15] In OPSEU (Holder/Streitenfeld) and Ministry of Correctional Services (1994), GSB Nos. 590/92, 591/92 (Barrett) (hereinafter referred to as “Holder”), Streitenfeld held the position of TAP Coordinator and Holder was a Classification Officer. Streitenfeld was involved in all institutional and community activities related to certain temporary absence programs. The Ministry contracted with Wayside Community Resource Centre (“Wayside”) to house up to 30 offenders who were allowed to leave the premises to work, etc. Streitenfeld assessed the offenders who applied to the program, including -6- interviewing them, and then made a recommendation to the Superintendent. He would advise the offender of his rights, obligations and the rules at Wayside. Wayside staff supervised the offenders and ensured that they obeyed the rules. Streitenfeld monitored the behaviour of the offenders to the extent that he had conversations and received reports from Wayside staff, and occasionally laid misconducts if Wayside was unable to correct a behavioural problem. The John Howard Society (“Society”) provided work for offenders who served their time on weekends. Streitenfeld gathered information about offenders for the Society. The Society interviewed the offender and made the decision whether to accept the offender into the program or not. Since Streitenfeld worked Monday to Friday and these offenders served their time from Friday night to Monday morning, he rarely had personal contact with these offenders. [16] As a Classification Officer, Holder provided offenders with a variety of services. He interviewed offenders and gathered information in order to make recommendations for treatment or other programs and the placement of offenders into institution work programs. Holder assigned offenders to the institution work programs, to the worker dormitory and he decided where they will work. Offenders were escorted to him for interviews and were escorted to their work sites by others. Holder advised offenders about their responsibilities at the work sites and he usually conducted an inspection of the work sites every day. Other employees supervised the offenders at the work site and had the authority to issue misconducts. These employees did receive the CRA. Holder could also issue a misconduct if he observed bad behaviour. [17] The Board began its analysis by noting that traditionally employees occupying the positions held by the grievors have not received the CRA, but then there was the result in Cannon. The Board reviewed the findings in Cannon at some length, particularly the factual conclusion that Ms. Cannon was required to direct offenders engaged in beneficial labour for the majority of her working time. The Holder decision also made reference to Mr. Collict’s perspective on the issue as reflected in his dissent. After entertaining submissions on whether the grievors met the requirements of the CRA provision, the majority concluded that they did not meet all of the requirements for the following reasons: We do not agree that either of these grievors can fit himself within the parameters of Cannon. These grievors do not take primary responsibility for escorting inmates about the institution. They do not take primary responsibility for counseling inmates concerning their behaviour at the work stations. They do not have primary responsibility for dealing with behavioural problems at the work site. They do not spend 70% of their time directly involved with inmate workers while they are working or going to or from work. In the case of Mr. Streitenfeld, he would 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 view, does not constitute directing inmates engaged in beneficial labour. Neither grievor has custody of the inmates or performs 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 majority of his working time, direct inmates while they are engaged 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. -7- Furthermore, we think that these grievors’ positions are covered by classes which already take into account responsibility for the control of inmates. Their whole 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 inmates in assisting them. [18] A review of these decisions leads to the following observations. As noted previously, both decisions are dealing with positions that fall within the Rehabilitation Officer, Correctional Services Class series. Cannon only addresses the requirement in (c) (i). The result in Cannon is based on a factual finding and an interpretation of the words “to direct inmates…engaged in beneficial labour” which indicates that it is not necessary for an employee to directly supervise the work performed by offenders in order to satisfy the requirement. Ms. Cannon’s role as the Coordinator of the TAP had virtually no relevance to whether she was entitled to the CRA. The Holder decision deals with the requirements in (c) (i) and (b). Given that Ms. Cannon and Mr. Holder were essentially engaged in similar duties, it is difficult to reconcile the results in these decisions. Although there is an attempt to distinguish the case on the facts, a fair reading of Holder suggests that the majority believed Cannon was wrongly decided. In interpreting (c) (i), Holder clearly concludes that an employee will only be entitled to the custodial responsibility allowance if the employee is required to “direct inmates while they are engaged in beneficial labour” for a majority of his or her working time. Holder also finds that the grievors do not meet the requirement in (b) because their “positions are covered by classes which already take into account responsibility for the control of inmates.” One common element of both decisions is that Ms. Cannon and Mr. Holder performed their duties primarily within their respective institutions and their responsibilities related to offenders who were assigned to perform work at the institution. [19] I turn now to whether the EMOs fulfill all of the requirements set out in Appendix COR2 thereby entitling them to the CRA. Whether or not the EMOs fulfill the necessary requirements is a question of fact, subject of course to the interpretation of the provisions setting out the requirements. A reading of Appendix COR2 in its entirety suggests that the purpose of the provision is to provide additional compensation to employees in the designated Ministries who are required to assume responsibility for offenders even though they occupy positions in which their duties could be performed without assuming any such responsibility. It is instructive that cooks, storekeepers and laundry workers have received the CRA. The defined duties of their position do not involve responsibility for offenders, but they assume such responsibility when they direct offenders assigned to work in their respective area of the institution. There is no dispute that the EMOs fulfill the requirement in (a) in that they are not professional staff. [20] The requirement in (c) (i) contains two main elements. Employees are eligible for the CRA if “they are required …to direct offenders …engaged in beneficial labour” and if they are engaged in directing offenders “for a major portion of their working time”. The first element can be broken down further. It was unnecessary for Cannon or Holder to define the term “beneficial labour”. As noted previously, Ms. Cannon and Mr. Holder were assigned duties in work programs at their respective institutions. In the case at hand, the EMOs monitor offenders who are released into the community for a variety of reasons. Even assuming all the offenders they monitor were released to maintain employment, the labour those offenders perform is unrelated to the institution from which they were released. When one considers the term beneficial labour in the context of (c) (i) as a whole, one is left with the inevitable conclusion that the term refers to labour that -8- is beneficial to the institution. This is the only type of labour an employee of the institution would be directing. I therefore agree with the Employer’s position that the EMOs were monitoring offenders who were not engaged in beneficial labour and for this reason alone they are not entitled to the CRA. [21] I also agree with the conclusion in Holder that the requirement “to direct offenders …engaged in beneficial labour” is intended to only cover employees who “direct inmates while they are engaged in beneficial labour”. It is quite a stretch to interpret the relevant words in (c) (i) to cover a situation where an employee merely is involved in directing offenders in his role as coordinator of a work program, which is what appears to have occurred in Cannon. Finally, there is also the condition that the employee spends the majority of his or her working time directing inmates engaged in beneficial labour. Apart from what constitutes beneficial labour, the EMOs do not come anywhere close to directing offenders while they are engaged in beneficial labour for a major portion of their working time. To reiterate, the EMOs spend the vast majority of their working time monitoring offenders to ensure that they comply with the conditions of their release. [22] By not fulfilling the requirement in (c) (i), the EMOs are not entitled to the CRA. Hopefully, this determination and the reasons for it will assist the parties in assessing the merits of the remaining grievances. It is unnecessary for me to decide whether the EMOs fulfill the requirements in (b) and (d) of the Appendix and I am not inclined to decide these issues. However, I will make some observations about them. [23] It appears that the requirement in (d) has not previously been the subject of adjudication. This particular requirement is that the employee is responsible for the custody of offenders and is required to report on their conduct and lay charges where breaches of institutional regulations occur. Employer counsel argued that EMOs do not meet the requirement because they spend most of their time monitoring individuals who are not in custody. He also argued that any reporting of their conduct and the laying of charges has to do with breaches of the conditions of release, and not related to breaches of institutional regulations. Although it is true that EMOs spend a major portion of their time monitoring individuals released into the community, they also spend some time with offenders who are in custody during the assessment process. EMOs will interview offenders, perhaps escort them as part of the interview process, place the electronic bracelet on the offender and escort the offender from the institution. As the particulars for the Mimico EMOs disclose, EMOs can report any misconduct of offenders and lay charges for a breach of institutional regulations, although they rarely have to exercise this authority because they are dealing with offenders who are seeking release and are therefore on their best behaviour. Insofar as the requirement in (d) is concerned, a question worth asking is whether the circumstances of the EMO and a Cook are materially different in regard to their responsibilities when dealing with inmates within the institution. I note that unlike in (c) (i), there is no indication that the employee needs to satisfy the requirement in (d) for the major portion of his or her working time. [24] The requirement in (b) excludes employees from receiving the CRA if they are “covered by classes which already take into account responsibility for the control of offenders …” Holder decided that the grievors’ positions in that case are covered by classes which take into account responsibility for the control of offenders. Since the grievors in Holder and the EMOs are in the same class, Employer counsel submits that I am bound to follow the conclusion in Holder and find that EMOs are not entitled to the CRA because they do not fulfill the requirement in (b). In effect, Union counsel argued that Holder was wrongly decided on this point and should not be followed. I simply note -9- that (b) requires a conclusion about whether the employee is covered by a class which already takes into account responsibility for the control of offenders. It is not entirely obvious from a review of the Rehabilitation Officer, Correctional Services class series that employees covered by this class are responsible for the control of offenders. Holder appears to focus on the job descriptions of the grievors and the fact that they were inmate focused. It is not clear that job descriptions have any relevance in determining whether the requirement in (b) has been satisfied. Since some of the remaining grievances were filed by employees who are covered by the same class series, counsel will have the opportunity to make further submissions on this issue. [9] As noted in the EMO decision, the purpose of the CRA provision is to provide additional compensation to employees in the designated Ministries who assume responsibility for offenders even though they are in positions in which they would not normally assume such responsibility. For example, an employee in a Cook position would have duties relating to the preparation of meals and would not normally have responsibility for inmates. However, a Cook takes on the responsibility for inmates when they direct kitchen workers performing beneficial labour. A Cook that takes on such a responsibility satisfies the requirement in (c) (i) and is entitled to the CRA. As provided in the requirement in (b), employees who are in positions which already take into account responsibility for the control of inmates are not entitled to the CRA. One of the reasons the grievors in Holder were denied the CRA was because of the requirement in (b). One grievor was a TAP Coordinator and the other was a Classification Officer. The Board concluded that their positions were entirely inmate focused. The other reason the Board found for denying the grievors the CRA was because they did not satisfy the requirement in (c) (i). Although the grievors had some responsibilities for programs in which inmates performed work, the Board found that they did not direct inmates while they were engaged in beneficial labour. In the EMO decision, I determined that the EMOs did not satisfy the requirement in (c) (i), in part because the term beneficial labour refers to labour that is beneficial to the institution. [10] I turn now to the remaining grievances before me. I have reviewed the particulars provided for these grievances and I have considered the written submissions provided by counsel. I have considered the remaining grievances before me in light of the requirements provided in App. COR2 for entitlement to the CRA, as well as the above comments and the determinations in the EMO decision. I will concisely address -10- whether the Union has made out a prima facie case for entitlement to the CRA on behalf of each Grievor. Temporary Absence Pass Officers/Coordinators [11] Ms. D. Hilditch filed her grievance dated November 3, 2000 (GSB #2003- 2169) while employed at the Whitby Jail and Mr. T. Sansano filed his grievance dated January 17, 2001 (GSB #2001-0067) while employed at the Mimico Correctional Centre (“Mimico”). A Temporary Absence Pass (“TAP”) is issued to permit an inmate to serve a portion of his or her sentence in the community. As TAP Officers, Ms. Hilditch and Mr. Sansano had responsibilities for inmates who applied for and were accepted for a TAP. However, the particulars do not support the conclusion that Ms. Hilditch or Mr. Sansano directed inmates while they were engaged in beneficial labour. The particulars also illustrate that their work as TAP Officers was very much inmate focused which means that they were in positions that already took into account responsibility for the control of inmates. [12] Ms. J. Redman filed her grievance dated August 10, 2005 (GSB #2005- 2498) while employed at the Toronto East Detention Centre. As TAP Officer, Ms. Redman’s position focused on Workboard duties. Her Workboard duties involved responsibility for programs that permitted inmates to perform work in and around the institution. The inmates that were accepted for institutional work were engaged in beneficial labour. However, the particulars do not show that Ms. Redman directed inmates while they were engaged in beneficial labour. The supervisor in the area where the inmates worked was the person who directed the inmates while they were engaged in beneficial labour. It also appears that Ms. Redman was also in a position which already took into account responsibility for the control of inmates. [13] Therefore, in relation to the grievances filed on behalf of Ms. Hilditch, Mr. Sansano and Ms. Redman, a prima facie case for their entitlement to the CRA has not been made out. Accordingly, the grievances filed on their behalf are hereby dismissed. -11- Classification Officers [14] Mr. K. Carnegie filed his grievance dated September 28, 2002 (GSB #2002- 3236) while employed at the Whitby Jail. Mr. B. Leonard filed his grievance dated February 1, 2007 (GSB #2007-0275) while employed at the Maplehurst Correctional Centre (“Maplehurst”). Mr. C. Elliott filed his grievance dated January 23, 2001 (GSB #2001-0070) while employed at Mimico. Ms. D. Rainhard filed her grievance dated January 17, 2001 (GSB #2001-0062) while employed at the Toronto West Detention Centre. Generally, Classification Officers are responsible for conducting an initial interview with inmates and for identifying the appropriate correctional regimen and programs for each inmate. Some Classification Officers also performed Workboard and TAP duties. [15] Mr. Leonard performs typical Classification Officer duties and does not perform Workboard or TAP duties. There is no indication that he directs inmates while they are engaged in beneficial labour. [16] Mr. Carnegie primarily performs Workboard duties and Mr. Elliott also performs Workboard duties. There is no indication from the particulars that they directed inmates for a major portion of their working time while the inmates were engaged in beneficial labour. Although they monitored the performance of inmate workers by touring the areas where inmates worked, the persons who did direct the inmates while they engaged in beneficial labour were the supervisors in the area where the inmates worked. Mr. Carnegie was responsible for the inmate cleaner who cleaned the office areas for 30-45 minutes per week. Even if he was directing the cleaner while the inmate was engaged in this work, this aspect of his duties did not constitute the major portion of Mr. Carnegie’s working time. [17] Ms. Rainhard was an EMO when she filed her grievance. She also requests the CRA for the Classification Officer duties she performed at Youth Offender Units in various institutions between May 1988 and August 1999. The Work Range and TAP Coordinator duties she performed were the normal duties performed by -12- Classification Officers who had such responsibilities. She did not direct the inmates while they were engaged in beneficial labour in these programs. Ms. Rainhard did not have any direct responsibility for young offenders while they participated in Project Turnaround (Boot Camp). The Christmas Window Painting Program took place 6 weeks leading up to Christmas. Ms. Rainhard’s duties in relation to this program, including the time she had sole responsibility for the young offenders while they were decorating for 90 minutes in the morning and 90 minutes in the afternoon, does not satisfy the requirement in (c) (1) in App. COR2, since she was not directing offenders while they were engaged in beneficial labour for the major portion of her working time. [18] The duties described in the particulars for Mr. Carnegie, Mr. Leonard, Mr. Elliott and Ms. Rainhard were entirely inmate focused. This illustrates that they were in a position which already took into account responsibility for the control of inmates. Therefore, in relation to the grievances filed on behalf of Mr. Carnegie, Mr. Leonard, Mr. Elliott and Ms. Rainhard, a prima facie case for their entitlement to the CRA has not been made out. Accordingly, the grievances filed on their behalf are hereby dismissed. Intermittent Coordinators [19] Mr. S. Beckta (GSB #2001-0066) and Ms. D. Elliott (GSB #2001-0068) filed their grievances dated January 17, 2001, while employed at Mimico. As Intermittent Coordinators, Mr. Beckta and Ms. Elliott were involved in coordinating, monitoring and managing inmates who were serving intermittent sentences on the weekend at the institution or under house arrest. They worked five days a week with three of those days taken up almost exclusively by interviewing inmates and monitoring them in the community to ensure compliance with the terms of their release. It is clear from the particulars that Mr. Beckta and Ms. Elliott did not direct inmates while they were engaged in beneficial labour. As well, since their duties and responsibilities were entirely inmate focused, they occupied a position which already took into account responsibility for the control of inmates. Therefore, in relation to the grievances filed on their behalf, a prima facie case for their entitlement to the CRA has not been made out. -13- Accordingly, the grievances filed on behalf of Mr. Beckta and Ms. Elliott are hereby dismissed. Library Technician 3 [20] Ms. L. Randa filed her grievance dated July 26, 2004 (GSB #2004-1888) while employed at Maplehurst. Before coming to Maplehurst in June of 2002, Ms. Randa was a Library Tech 3 at the Guelph Correctional Complex and while there she was in receipt of the CRA. In July of 2004, Ms. Randa’s new manager reactivated her CRA, but only backdated it to April of 2004, the time when he became her manager. Ms. Randa is seeking the CRA for the time period from June 2002 to March of 2004, when she worked as an unclassified Library Tech 3 at Maplehurst. [21] During the relevant time, Maplehurst did not have a regular, full library for inmates serving sentences. The only inmates that received library services were those on remand units. These inmates were not permitted to leave their cells. At least twice a day, Ms. Randa assembled books on her library cart and went from cell to cell in the remand wing offering books to inmates and taking requests. She would re-shelve the returned books and stock the cart with the requests she had received. She would also receive written requests for books. [22] There is no indication as to the basis upon which Ms. Randa received the CRA before June 2002 and after March 2004 while employed as a Library Tech 3. In any event, there is no indication that Ms. Randa directed inmates while they were engaged in beneficial labour during the relevant time period. Therefore, in relation to the grievance filed on behalf of Ms. Randa, a prima facie case for her entitlement to the CRA has not been made out. Accordingly, the grievance filed on behalf of Ms. Randa is hereby dismissed. Grounds/Maintenance Worker [23] Mr. C. Mullen filed his grievance dated February 15, 2008 (GSB #2007- 3984) while employed as a Groundskeeper at the Cecil Facer Youth Centre. As the -14- Groundskeeper, Mr. Mullen’s primary duties involved tending to and maintaining the grounds of the institution, which included tree trimming, gardening and lawn cutting during summer months and snow removal and salting the grounds during winter months. Young offenders were assigned to work on the grounds. Mr. Mullen trained the young offenders on how to use various pieces of equipment, such as tractors, lawn mowers and snow blowers. During the summer months, Mr. Mullen could have as many as 5 young offenders assigned to him. The inmates could be outside for 6-7 hours a day doing work on the grounds. Mr. Mullen was responsible for the young offenders and he was obliged to monitor them on a constant and ongoing basis during the day. Although the particulars do not describe Mr. Mullen’s duties by using the words “directs the inmates”, the general description of his responsibilities in relation to the young offenders who are assigned to him to perform groundskeeper work suggest that he was likely directing the young offenders while they were engaged in beneficial labour. It is not unusual for a person in a Groundskeeper position to be entitled to the CRA. I am satisfied that the Union has made out a prima facie case for Mr. Mullen’s entitlement to the CRA. Accordingly, Mr. Mullen’s grievance is referred back to the parties for further consideration. The Union shall advise the Board in due course as to how it wishes to proceed with Mr. Mullen’s grievance. Cook 2 [24] Ms. B. Huitema filed her grievance dated January 5, 2005 while employed as a Regular Part Time Cook 2 at the Stratford Jail. Ms. Huitema did receive the CRA for her regular part time hours worked (32.5) since she started as a Cook 2 in 1990. She did not receive the CRA for any of her overtime hours worked. She regularly worked up to 40 hours per week. The Union takes the position that Ms. Huitema should have been paid the CRA for all of her overtime hours. It is clear from the last section of App. COR2 that the CRA is to be paid according to the basis rate of pay. I agree with the submission of Employer counsel that the CRA is not payable on overtime hours. Accordingly, the grievance filed on behalf of Ms. Huitema is hereby dismissed. -15- Cleaners 2 [25] Ms. S. Williams filed a group grievance dated May 13, 2008 (GSB #2008- 3437) while she and the seven other employees in the group were employed at Maplehurst in the Housekeeping Department. While engaged in cleaning duties, the Cleaners are in close proximity to inmates on a regular and daily basis. In addition, inmate cleaners often perform their cleaning work with and in close proximity to the Cleaners. The Cleaners believe that their situation is similar to that of maintenance personnel who receive the CRA. There is no indication in the particulars that the Cleaners direct inmates while they are engaged in beneficial labour. Close proximity to inmates or inmate cleaners is not a relevant consideration for entitlement to the CRA. Therefore, a prima facie case for entitlement to the CRA has not been made out for the cleaners covered by the group grievance. Accordingly, the Williams group grievance is hereby dismissed. [26] Since the commencement of the initial proceeding, more grievances have been filed claiming entitlement to the CRA. The parties have agreed to address these grievances in groups over a period of time in the same way they addressed the grievances covered by this decision. Following the filing of particulars and the completion of written submissions for each group of CRA grievances, the Board will determine whether the Union has made out a prima facie case for the grievances within each group. Any Employer’s objections to the CRA grievances will continue to be set aside pending the determination of whether the Union has made out a prima facie case for any of the grievances. Dated at Toronto, Ontario this 28th day of May, 2021. “Ken Petryshen” ______________________ Ken Petryshen, Arbitrator