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Home My WebLink About2000-0960.Rainhard.11-03-09 Decision en.n EiJJpIo)II!es Grievance Settlement Board smte mo 180 IJlndas 5t WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Commission de riglement des griefs des~dela CoIfinJe Ibeau mo 180. rue IJlndas Ouest T CJRJrm (OnIario) M5G 1ZB Tel: (4-16) 326-1388 T~ : (4-16) 326-1396 ~ Ontario GSB#2000-0960, 2001-0064, 2001-0065,2001-0069, 2001-0070, 2001-0269 UNION#2000-359-0016, 2001-0521-0003, 2001-0521-0011, 2001-0521-0009,2001-0521-0008,2001-030&-0015 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER lIEAKING Before THE GRIEVANCE SETILEMENT BOARD Ontario Public Service Employees Union (RainhanIetaI) - aad - The Crown in Right of Ontario (Minis1Iy of Comrmmity Safety and Correctional Services) Ken PetIyshen Richard Blair Ryder Wright Blair & Holmes LLP BarristeIs and SolicitOIs Gemge Parris Minis1Iy of Government Services Labour Practice Group Counsel March 30, 2010 U_a Employer Vtre-Chair -2- Decision [1] There are a IIlIIDber of grievances before me filed by employees c1aimine entitlement to the Custodial Responsibility Allowance (<<eRA j which is referenced in 1he current Collective Agreement in Article 7_8 and, more importantly for our ~ in Appendix COR2. A virtnaUy identical provision has been a feature of previous collective agreements going back: to at least 1984. In essence, the CRA is an allowance of $2,000_00 pel" year payable to employees in 1he Minis1Iy of Comrmmity Safety and Correctional Services and 1he Minis1Iy of Chilchen and youth Services and employees wotking in 1Iaining schools opemted by 1he Minis1Iy ofChilchen and Youth Services, provided the employee fi.lfills certain requirements_ In Older to efficiently address 1he issues raised by all of the grievances, 1he parties agreed to first focus 00. six grievances filed by E1ectronic Monitoring 0fficeIs (~Osj, which fiill within the Rehabilitation Officer, Correctional Services class series.. Five EMO grievances were :filed in January of2001 and one was filed in August of2000_ The Unioo. provided particulars setting oot 1he duties and responsibilities of the six EMOs and 1he parties agreed, on a without prejudice basis, to make submissioos as to whether the EMOs are entitled to the CRA based 00. the Unioo.'s best case, as reflected by 1he EMO particuIaIs_ If the Unioo.'s positioo. is not sustained based 00. its best case, it will be 1IIIDeCeSS8IY to deal with the Employer's objections to 1he grievances, which include a timeliness objectiOlL [2] Appendix COR2 provides 1bat employees in the desienatM Ministries are entitled to 1he CRA if1hey:fulfill all of1he following requiu':IIIr....s: (a) 1hey are not professional staff such as 1.eacheIs, DDISes, social wodels or psychologists; (b) the positioos to which 1he employees are assigned are not covered by classes which aheady take into accoont responsibility for the control of offencbs or wards, such as CmrectionaI OfficeIS, Indus1rial OfficeIs, SupervisoIs of -3- jnvenil~ Observation and Detention Home WodeIs, Recreation 0fficeIs (Correctional Services), Trade Ins1ructors and Provincial Bailiffs; (c) (i) they are required, for 1he major portion of 1heir wotking time, to direct offenders or wards enWlero in beneficial labour; or (ii) as group leadeIsIlead handsJ they are directly responsible, for a major portion of their working time, for opem:tions involving 1he control of a number of offenders or wards engaged in beneficiallabom; and (d) they are responsI"ble for 1he custody of offenders or wards in their charge and are required to report on 1heir conduct and lay charges where lx"earhes of ms1I. .~__1 .........~I..h .lUUUIUIl n.fiUHUAOOS occur_ [3] The Union taRs 1he position that the six EMOs :fulfill all of the above requirements and are 1herefore entitled to the eRA. In cmdIast:, 1he Employer maintains 1hat 1hey do not meet 1he requirements in (b), (c) (i) and (d)- [4] The particulars :filed by 1he Union provide a genernI description of the EMO position as well as some 1hat modify or supplement 1he general descriptioo. for each of1he six employtrS. The EM Program has been renamed and undergone substantial changes since the grievances were:filed In 2003, 1he EM Program was renamed 1he Eledmnic Surveillance Program and Iater became 1he Eledmni.c Supervision Prognu:n. EMOs are now called E1edmo.ic Supervision Resource Officers_ For convenience, I will continue throughout this decision to refer to 1he prognun as 1he EM Program and 1he positioo. as 1he EMO position.. Since 2001~ 1he wotk locations of employees enw-ero in electronic monitoring have moved :from within the institutioos to other :facilities_ Since 2006, EMOs have wmled out of Probation and Parole Offices and since December of2008, they perfonn their work :from 1heir desks without the need to have as much face to face contact with ~. In !Of"fline oot 1he duties of1he EMOs referenced in the particulars, I will provide a SIII1III13TY of 1heir duties and wspoDSI."bilities JU-iu..a..ily for the time -4- when they :filed 1heir grievances. I am taking this approach oot of a sense 1bat as changes occurred over time, particularly after December of2008, 1he case for 1he pa}'IIKD of1he CRA becomes less compelling. The EMOs who :filed grievances claimine the CRA are Ms.. D_ RainhaTd, Mr_ R. Hogue, Mr. M. :Eb.L Mr. C_ Elliot, Mr_ R.. Gordon and Mr_ P. Riches.. [5] The EM Prognu:n involves 1he electronic monitoring of adult offencbs who are pc Illillt-.d to serve their sentence in 1he comrmmity with conditions.. The primary reason for release into 1he comrmmity is to pennit 1he offender to continne wmting at a job. Other reasons include ednca:tional, medical and the need to care for a family member_ Participants are fitted with an dectronic an1.:le bracelet 1bat transmits radio fieqnency sienals to a receiver installed in 1he offenders home in Older to tmck continuoosly the offender's presence or absence at the residence_ Participants are required to abide by a pre-approved schedule and unauthorized absences or other violations of the EM Prognu:n are reported, investigated and dealt with in accordance with established protocols.. [6] The EMO is respoDSI"ble for assessing 1rnnate applications for 1he EM Prognu:n. This involves reviewing 1he application, interviewing 1he inmate" doing background checks (ie. CPIC) and CIIII filllline 1he tmthfi.ln~... of 1he reason given for retllmine to 1he COIDlDlmrty, such as confinnine with an employer that 1he inmate will have continued employment if released It also involves visiting 1he inrnate~s intendP.d place of residence to ~ whether the home 1he inmate was returning to is conducive to rebabilita:ti0lL 1he EMO wooId then write a report con1ainine 1he relevant infonnation with a recomJJ1f"Dru.noo. and submit the report to 1he person or entity responsible for approving or rejecting 1he application. -5- [7] If approved, 1he EMO would :fit 1he offender with a bracelet and 1Iansport the offender to his or her home, without 1he assistance of correctional staff. Depending 00. 1he location of1he residence, the com.....l~ could take as long as oo.e boor or more. UJMJIl aniving at 1he residence, the EMO would install a transmittingfre device into the telephone box that wooId keep 1Iack of the offender's proximity to 1he box.. The EMO wooId program the equipment so 1bat 1he offender had to be widrin a prescribed range of the mmsmillellreceiver during certain hours of the day_ The programmed time cooId be set to take into account the offenders work schedule and the prescribed range depended on the dimensions of the property_ The data recording 1he offender's presence and a~ frmn home is tnmsmitted to remote monitoring equipment and any unauthorized absence wooId set off an aIann. [8] The EMOs are supplied with pagelS and were expected to cany 1hem at all times_ SmIle were also given Iaptops_ An alarm would be tnmsmitted to 1he pager as well as 1he monitoring equipment at the institution. During noo.-wmling and evening hours, a night shift EMO was responsible for responding to alarms" although many EMOs had to respond to alanr1!iO and phone calls fiom the institutioo. during noo.-wmling and evening hours_ [9] In addition to responding to alanr1!iO" EMOs were responsible for monitoring o-FfP.nth:s 00. an ongoing basis_ The EMOs woold use 1he electronic monitoring prognun at 1he institution (and on laptops if 1hey had one) to eJ[3IIIme and analyze when offenders were at their residence to ensure compliance_ They would call offenders at home or at their work location to ensure that 1hey were complying with 1he condi:tioos of 1heir release. In addition. EMOs would go into the cmmnunity in a Minisky vehicle with two devices similar to 1he tnmsmitter installed in 1he offenders home phone. These devices similarly act as h...lMllil1l':I!receiveIs 1bat beeped when -6- 1he offender was within a certain proximity of1he device_ One device was plugged into the vehicle's cigmdh: Ii.gbter and connected to an .mlen... that was placed 00.1he back windshidd of 1he vehicle (the anrive By" device)_ The o1her device, whose signal was weaker than 1he Drive By device. was a handheld transmiller/receiver 1bat could be used when 1he car was unable to get close enough to a bui.lding (the UWalk By" device). These devices cooId be used to de1ernrine if an offender was at wm::k.. [10] If an offender breached a condition ofhis or her release, the EMO was respoDSI"ble for Iaying a misconduct charge, bringing 1he imna1e back to 1he institution and revoking 1he offenders participation in 1he EM Prognu:n. The laying of a miscondnct charge constituted autmnatic revocation of the offender's participatioo. in 1he EM Program. [11] As noted previously, in addition to the above genernI iufuuuation about the EM Program and about 1he wotk of an EMO, the Union provided more detailed infmmation for each employee lq;a1diug such matters as how many offendeIs were interviewed in a week at the institution, how long an interview Iasted. how often bracelets were placed on offenders and how long this took. how long it took to drive 1he offender- to his residence and set up 1he EM equipment and 1he amount of time each EMO spent monitoring offenders in 1he COIDIDlIIIity to ensure 1hat 1hey were compliant with 1he conditions of their release. Although this detailed infonnatioo. was helpfuL I do :find it useful to refer to 1hose details here. I simply note that the vast majority of the EMO's time when they:filed their grievance, as one wooId expect tim:n their job title, was spent monitoring offenders in various ways to ensure 1bat 1hey adhered to 1he conditions of their release while in the COIDIDlIIIity_ -7- [12] During their submissioos, counsel referred me to 1he only two decisioos which detf"fl111ned whether an employee was entitled to 1he eRA Both cases deal with employees who held a position within the Rehabilitation Officer~ Correctiooal Services class series_ I will refer to these decisions in some detail. [13] In OPSEU (Cannon) and Ministry of Correctional Services (1991)~ GSB No_ 1714190 (Samuels) (hereinafter referred to as "Cannonj, 1he grievor was 1he Coordinator of the Temponry Absence Prognun ("TAP") and 1he Institutional Wotk Prognun (~_ The only issue in 1he case was whether 1he grievor satisfied 1he condition in (c) (i) of 1he Appendix, nameIy~ was she required, for a major portion ofher working time, to direct offenders enw-ero in benefi.ciallabour_ The grievor's claim for 1he CRA was based pl-iu..a..ily on her wotk with 1he IWP. The IWP consisted of lnmafe!;; working at jobs in the institution, such as laundry and kitchenjobs.. As Coordinator of1he IWP, the grievors duties included selecting offencbs for 1he program, which included an interview; escorting offenders to 1he medical office; escorting offenders to their living qnarteIs; escorting offenders to 1heir wotk locatioos; and, checking 1he wotk statioos to ensure offencbs were doing 1heir as.~ened jobs_ She did have 1he authority to issue a misconduct to an offender_ The grievor spent 80% ofher time on 1he IWP and 75% of her time directly ilea1ine with offenders under both programs. The Board concluded 1bat 1he grievor was required to direct offenders enw-ero in beneficial labour for 1he majority ofher working time. It fomul that she directs offenilers by taking primary responsibility for 1hem while escorting and counselling 1hem. It also fomul1bat the offenders she directs are enWlero in benefi.ciallabour 00. 1he basis of 1he following analysis, starting at page 4: Though she herself does not operate 1he Jcitc.henl 1he laundry, or the gm~...ine service, her contact with 1he lnmafe!;; on the IWP is part and parrel of 1he labour itself. The "engagemenr' in beneficial labour involves the whole IWP process - selection, escort, monitoring, counseling, and pafuuuiug the wmk itself. The grievor's contact with the -8- imna~ is not simply part of the genernI care and custody undertaken by correctional officers_ Her contact with 1he imna~ is for 1he pmpose ofhaving 1hem perfonn benefi.ciallabour_ [14] The Cannon decisioo. included a sbung dissent tium Mr_ Collict He disagreed with the view 1hat escorting and counseling offenders amounted to directing 1hem when they were wmting. [15] In OPSEU (HolderlStreiwifeld) and Ministry a/Correctional Services (1994), GSB Nos_ 590/92, 591/92 (Barrett) (hereinafter referred to as u. Holde?), Streitmfeld hdd 1he position of TAP Comdinator and Holder was a Classification 0fIicer. Streitmfeld was involved in all institutional and COIDIDlIIIity activities related to certain temporary absence programs.. The MinisUy contmcted with Wayside Cnmrmmity Resource Cmtre \waysidej to boose up to 30 offenders who were allowed to leave 1he premises to wad, etc_ Streitenfeld assessed 1he offenders who applied to the prognun, including interviewing 1hem, and then made a ~ahoo. to the Supa;lIlt':lldent He would advise 1he o:ff'mder ofhis rights, obligations and 1he rnIes at Wayside. Wayside staff supervised 1he offenders and ensured 1bat they obeyed 1he rnIes_ Streitenfeld monitored 1he behaviour of 1he offenders to 1he extent 1hat he had coo.vasations and received IqXJIts fiom Wayside s1af( and occasioo.aUy laid misconducts if Wayside was unable to cmrect a behaviomal problem. The John Howard Society ("Societyj provided wotk for o:lIendels who served their time on w~1rends_ Shcikufcld ga1hered infonnatioo. about offenders for 1he Society. The Society interviewed 1he offender- and made the decision whether to accept 1he offender- into 1he program or not.. Since Streitenfdd waded Monday to Friday and 1hese offenders served their time tium Friday night to Monday IDOIDing, he rarely had personal cmdact with 1hese offendeIs. -9- [16] As a Classificatioo. Officer~ Holder provided offenders with a variety of services.. He interviewed offenders and gathered infonnatioo. in Older to make I"eC()111IJ1f"Dila1loos for 1rea.hnent or other programs and 1he plar.P.mP.nt of offenders into institution wod:. pmgnuns_ Holder assiened offenders to 1he institution work programs, to 1he worlrer donnitory and he decided where 1hey will work. OffendeIs were lSXJIted to him for interviews and were escorted to their work ~ by 01hers_ Holder advised offenders about 1heir responsibilities at 1he wod:. sites and he usuaUy conducted an inspection of 1he work ~ every day_ Other employtrS supervised 1he offenders at 1he wod:. site and had 1he authority to issue misconducts_ These employees did receive the CRA Holder could also issue a misconduct ifhe observed bad behaviour. [17] The Board began its analysis by noting that 1Iaditioo.aUy employees occupying 1he positions held by 1he griev(J[S have not received the eRA, but then 1here was 1he resuIt in Cannon. The Board reviewed 1he finitior;;: in Cannon at some leng1h, particularly 1he fitctuaI coo.clusion that Ms_ Cannon was required to direct offenders engaged in bene:ficiallabour for the majority ofher working time. The Holder decision also made reference to Mr_ Colliers peISpeCIive on1he issue as reflected in his dissent. After eu1CIIBinine submissions on whether 1he griev(J[S met the requirements of1he CRA provision, 1he majority concluded that they did not meet all of1he requirements for 1he following reaoums: We do not agree that either of these grievors can fit himself within the panuneteIs of Cannon These grievors do not take ....iu..a.. y responsibility for escorting inmaiPs about 1he institutiOlL 1hey do not take primary responsibility for counseling inmates concerning their behaviour at the wod:. stations.. They do not have ....iu..a..y responsibility for ilea1ine with behaviomal problems at the wod:. site. They do not spend 70% of their time directly involved with inmate wodeIs while they are wmting or going to or fium work. In 1he case ofMr_ Streitenfelil J he would seldom even see an inmate working ber.all!i:P. all wod:. is done away fium 1he institution and the inmates are supervised while working by a variety of people, but never by Mr. Streitenfdd Mr_ Holder spends about 30 mimtfes a day visiting all of 1he WOIk sites, but 1his, in our view, does not constitute -10- directing imnatPs engaged in beneficial labour. Nei1her grievor has custody of 1he imna~ or perfonns escort services, although it could be said they are ":in chargeD of 1he imna~ during interviews.. We find 1bat in order to be eligible for the custodial responsibility allowance, a person must, for 1he majority ofhis woding time, direct imna~ while they are engaged in bene:ficiallabour. In Ms.. Cannoo.'s case, she spent 70% ofher woding time having primary responsibility for imnatPs while 1hey were working or envero in wotk-reIated activities, such as being medically eTamined to detf"fl111ne fitness for wotk and going to and tium wad, as well as behaviour management. Furthennore, we 1bink that these griev(J[S~ positioos are covered by classes which already take into account responsibility for 1he control of imna~ Their whole job descriptions are inmate focused. _they would have nothing to do if 1here were no inmates to wod:. wi1IL They are unlike 1he cooks, storekeepeIs and laundry wodeIs who have a job to do entirely unreIated to inmates, but get the custodial responsibility allowance because 1hey direct imnatPs in assisting 1hem.. [18] A review of1hese cJecisioos leads to 1he following observations.. As noted previously ~ both decisioos are 1h1ine with positioos that fiill within 1he Rehabilitatioo. Officer, Correctional Services Class series.. Cannon only addresses 1he requirement in (c) (i)_ The result in Cannon is based on a factual findine and an iuhaJU-dation of the wOlds "to direct imna~_. _enw-ero in bene:ficiallabour' which indic.ates that it is not necessary for an employee to directly supervise 1he wod:. perfonned by offenders in order to satisfy the requirement. Ms.. Cannon~s role as 1he CoordinatoI" of 1he TAP had virtnaIly no relevance to whether she was entitled to 1he CRA The Holder decision deals with 1he requirements in (c) (i) and (b)- Given 1bat Ms.. Cannoo. and Mr_ Holder were es.~al1y engaged in similar duties, it is difficult to reconcile the results in these decisions_ Although 1here is an att~'1I1lt to distinguish the case 00. 1he facts, a firir [PaiIine of Holder suggests 1bat the majority believed Carmon was wrongly decided In inhap.diug (c) (i), Holder clearly concludes 1bat an employee will only be entitled to the custodi.a.I responsibility allowance if the employee is required to "direct imna~ while they are engaged in bene:ficiallabour' for a majority ofhis or her woding time_ Holder also :finds 1bat the grievors do not meet 1he requirement in (b) because 1heir "positioos are covered by -11- classes which aheady take into account responsibility for the control of il111latPs_" One common element ofboth decisions is 1bat Ms. Cannon and Mr_ Holder pedonned 1heir cIut:ies pl-iu..a..ily within 1heir respective institutions and their responsibilities reIated to offenders who were assigned to perfonn wOIk: at the institutiOll. [19] I tom now to whe1her 1he EMOs :fulfill all of the requirements set oot in Appendix COR21hereby entitling 1hem to 1he eRA Whe1her- or not 1he EMOs :fulfilI1he necessary requirements is a question of fact, subject of course to 1he intetpl-datioo. of1he provisions setting oot 1he requirements_ A wadine of Appendix COR2 in its eu.t.Udy suggests 1bat the purpose of 1he provision is to provide additional compensatioo. to employees in 1he tkippated Ministries who are required to assmne responsibility for offenders even 1hough they occupy positioos in which 1heir cIut:ies could be performed without as.omrnlne any such responsibility_ It is instructive 1bat cooks, storekeepers and Ia:undry worlrers have received the eRA The defined cIut:ies of their position do not involve responsibility for offenders, but 1hey assume such respoDSI"bility when 1hey direct offencbs assigned to wotk in 1heir respective area of 1he institutiOlL There is no dispute that 1he EMOs fu1:fi111he requirement in (a) in 1bat they are not professiooal staff. [20] The requirement in (c) (i) contains two main elements. Employees are eligible for 1he CRA if "they are required _. _to direct offenchn . __engaged in bene:ficiallaboul" and if 1hey are enw-ero in directing o-FfP.nth:s "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 tenn "bene:ficiallabour'. As noted previously, Ms_ Cannon and Mr_ Holder were assigned duties in wotk programs at their respective institutions_ In 1he case at hand, 1he EMOs monitor offenders who are released into 1he community for a variety of reasons.. Even as.ommine all the offenders -12- 1hey monitor were released to maintain employment, the labour 1hose offendeIs perfonn is unrelated to 1he institution :from which they were released When one coo.siders 1he term benefi.ciallabour in the context of (c) (i) as a whole, one is left with the inevitable conclusioo. 1bat the tenn refers to labour that is beneficial to the institutiOll. This is 1he only type of labour an employee of 1he institution wooId be directing. I 1hct.efuu:; agree willi 1he Employers position 1bat the EMOs were monitoring offenders who were not engaged in beneficial labour and for 1bis reason alone 1hey are not entitled to 1he eRA.. [21] I also agree willi 1he conclusion in Holder 1hat 1he requireIIaJt "to direct offenders . __engaged in bene:ficiallabom" is intended to only cover employees who adirect i~ while 1hey are engaged in beneficiallabom". It is quite a stretch to iuhap.d 1he relevant words in (c) (i) to cover a situatioo. where an employee merely is involved in directing offenders in his role as coordinator of a wotk program, which is what appears to have occurred in Cannon. FinaUy~ 1here is also the conditioo. 1bat 1he employee spends the majority ofhis or her working time directing imnatPs engaged in beneficial labour. Apart:from what constitutes beneficiallabour~ 1he EMOs do not cmne anywhere close to directing offenders while they are engaged in benefi.ciallabour for a major portion of1heir working time.. To reiterate~ 1he EMOs spend 1he vast majority of their wOIking time monitoring offencbs to ensure 1bat 1hey comply willi 1he conditions of their release. [22] By not fi,lfi1line 1he requireIIaJt in (c) (i),1he EMOs are not entitled to the eRA.. Hopefully, 1bis de1ernrinatioo. and the reasnns for it will assist the parties in asses.m.e the merits of1he remainine grievances_ It is unnecessary for me to decide whe1her 1he EMOs :fulfill the -13 - req1.I.llel IIr.I lIs in (b) and (d) of the Appendix and I am not inclined to decide 1hese issues_ However~ I will make some observa1ioos about them.. [23] It appealS 1bat 1he requirement in (d) has not previoosly been 1he subject of adjudication. This particular requirement is 1bat the employee is responsible for 1he custody of offenders and is required to IqMJrt on1heir conduct and lay charges where breaches of institutional regulations occur. Employer counsel argued 1bat EMOs do not meet the requirement ber.a11!i:P.they spend most of 1heir 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 bFaches of 1he conditions of release, and not reIated to breaches of institutional regulations.. AI1hougb. it is 1rue 1bat EMOs spend a major portioo. of 1heir time monitoring individuals released into 1he commnnity, they also spend some time with offenders who are in custody during the asses,o;:ment process.. EMOs will interview offenders, perhaps escort them as part of 1he interview process, place 1he eIectronic bracelet 00. 1he offender and lSXJrt 1he offender:from 1he institutiOlL As 1he particulars for 1he Mimico EMOs disclose, EMOs can IqMJrt any miscondnct of offenders and lay charges for a breach of institutional regulations~ aI1hough they rarely have to exercise 1bis authority because 1hey are dealine with offenders who are seeking release and are 1hadUl.e on1heir best behaviour. Insofar as 1he requirement in (d) is concerned, a question worth a~lrn1e is whe1her 1he cinmnstances of1he EMO and a Cook: are materially difflaad in regard to their responsibilities when dea1ine with imnatP.s within the institutiOll. I note 1hat unlike in (c) (i), there is no indication1hat 1he employee needs to satisfy the requirement in (d) for the major pmtioo. ofhis or her working time_ -14- [24] The requirement in (b) exclucb employees fium receiving 1he CRA if 1hey are "covered by classes which aheady take into account responst"bili:ty for 1he con1rol of offP:nths . _ _ D Holder decided that the grievms' positions in 1bat case are covered by classes which take into account responsibility for 1he control of offenders_ Since 1he grievors in Holder and the EMOs are in 1he same class, Employer counsel submits 1bat I am bomuI to follow 1he conclusion in Holder and find that EMOs are not entitled to 1he CRA because 1hey do not :fulfilI1he requirement in (b)- In effect. Union counsel argued that Holder was wrongly decided on this point and should not be followed I simply note that (b) requires a coo.clusion about whe1her 1he employee is covered by a class which already taRs into account responsibility for 1he control of offenders_ It is not entirely obvioos fium a review of 1he Rehabilitatioo. Officer, Correctional Services class series 1bat employees covered by this class are respoDSI"ble for 1he cmdml of offenders_ Holder appears to focus 00. 1he job descriptioos of 1he grievors and the fact 1bat 1hey were inmate focused It is not clear 1bat job descriptioos have any relevance in detennining whether the requirement in (b) has been satisfied Since some of the remainine grievances were filed by employees who are covered by 1he same class series, coonsel will have 1he opportunity to make fur1heJ:- submissions on this issue_ [25] For 1he foregoing rea.oums, 1he six EMOs are not entitled to the Custodial Responsibility Allowance. AccoIdingly, 1heir grievances are hereby dismi~ Dated at Toronto, this ()'h day of March 201 L '" ~~ Li ",'. . ,1 ," . <__' '~e" . '." :,. .. Ken Petryshen - Vice-Cbair