HomeMy WebLinkAbout1979-0257.Askew.82-07-12IX THE XATTER OF Al< ARBITRATION
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TX CROW ENPLOYEES COiLECTIVE BARGAIXING ACT
Before
THE GRIEVAKCE SETTLEXENT 3OARD
Between:
Before:
.OPSEU (Frank Askew) Grievor
- And -
The Crown in Right of Ontario
(Uinistry of Correctional
Services) Employer
R.L. Veriizy, Q.C. Vice Chairman
R. Russell jiember
D. Middleton Member
For the Grievor: S.T. Gocdge, Counsel
Cameron, Brewin & Scott
i0r ths Emlo-er: J. Eenedict, Manager
Staff Rela:ions
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:
AWARD
The Grievor, Frank Askew, alleges that he is improperly
classified as a Correctional Officer 3 at the Elgin-?kliddlesex
Detention Centre at London, Ontario. He requests re-classification
.to Correctional Officer 4, retroactive to April 18th, 1977.
Mr. .Askew first worked as a Jail Guard at the Niddlesex
County Jail in January of 1962. By 1968 he had become a Correctional
Officer 3 and the following year was transferred to the Woodstock
Jail. In 1974, he was promoted to the Correctional i:fficer 4 class-
ification and remained in that classification until A:>rll 18th, 1977,
when the Woodstock Jail ceased operation. He was forthwith transferrred
to the new Elgin-Middlesex Detention Centre at London and was classified
as a C.O. 3, and his salary was “red circled”. The o;,er.ing of the new
Detention Centre at London resulted in the closing of tiree older
institutions including the Woodstock Jail. In those three jails
there were 15 employees classified as C.O. 4 or Shift Supervisors,
and management made the decision at the Elgin-Middlesex Detention
Centre to employ 7 of those Shift Supervisors in the new.-facility,
all of whom were promoted to C.O. 5 classifications.. The remaining
8 employees including the Grievor were re-classified as C.O. 3’s.
There are no C.O. J’s at the Elgin-Middlesex Detention ientre.
The Woodstock Jail employed a staff of approximately 3il
employees. The new Detention Crntre at London ?mpiov.s a s.taff of
some 100 employees. The Elgin-Yiddlesex Crntre has formalized
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programs available for inmates including recreation, exercise,
industrial and community work. No such formalized programs were
available at the Woodstock Jail. At the London Centre there are
8 Shift Supervisors, 11 C.0; 3’s and 24 C.O. 2’s. The Grievor is
responsible for an area within the institution, and has a maximum
of 5 C.O. Z’s to whom he gives direction, and approximately 1170
inmates most of whom are young offenders between the ages of 16 and
20 years. The Grievor alleges that the duties he performs at the
Elgin-Middlesex Detention Centre are “exactly the same as Woodstock
with a few variances”. Much bf the tesimony centered around a
comparison of the Grievor’s duties as a C.O. 4 at Woodstock and his
present responsibilities as a C.O. 3 at Elgin-Middlesex. Class
Standards for Correctional Officer 3 and Correctional Officer 4
were introduced as Exhibits, including the preamble to the Correctional
Officer series. The Class Standards of the Correctional Officer 3
ser ies (Exhibit 2b) reads as follows:
“CORRECTIONAL OFFICER 3
This class covers positions of Correctional Officers
who either:
a) as the first level of supervising officer, assist as
senior officer in the supervision of subordinate
Correctional Officers and the control and direction
of inmate activities;
OR -
b) serv-e as senior offi- ier in charge of a specialized
institutional function OT area such as admissions and discharge, towe r are a, institutional laundry, etc.
0R -
d)
e)
f)
9)
h)
i)
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serve as officer in charge of the main inmate
work party involving responsibility for the
supervision of subordinate Correctional Officers
assigned to assist in the control and direction
of inmates engaged in rehabilitative work;
OR -
act as second in charge of an assigned shift and
deputize for the officer in charge under Jail
Superintendent 5 or J or in all Industrial Farms
except I .F., Burliash orat the A. G. Brown Memorial - Clinic;
OR -
serve as second in charge of a District Jail (Remand
Cent re) ; serve as second in charge to an officer in
charge of the female unit of a jail except under a
Jail-Superintendent 6 ;
OR -
serve asp officer in charge of a shift under a Jail
Superintendent 1 or 2, and take charge of the
institution as required or act as officer in charge
of a shift for the femaleunit under a Jail Super-
intendent 6 ;
OR -
plan, develop and supervise the inmate program in an
assigned unit or ‘hall’ of an institution and supervise
any assigned staff;
OR
serve as second in charge of a shift or officer in
charge of the night shift as Associate Cottage Super-
visor at the Vanier Centre for Women.
OR -
serve as the officer at Vanier Centre for Women in
c:lnrge of supervising staff responsible for the
admission of \:isitors, searches for contraband,
assistance to female staff during disturbances, etc.
ST.AFFIXG ST.\ND.-\RDS :
BLlS;iC: See r)reamble.
‘. . .
CL.4SS LEVEL :
About three years of satisfactory experience as a
Correctional Officer;
or the acceptable educational requirements as stated
zr Correctional Officer 2 level with at least one
year’s staff supervisory responsibility in a related
environment. ”
The Class Standards of the Correctional Officer 4
(Exhibit 2c) reads as follows:
“CORRECTIONAL OFFICER 4
This class covers positions of Correctional Officers
who either:
a) serve as officer in charge of a permanent work camp
adjacent to the parent institutions under the general
direction of a Reformatory Superintendent or a Jail - Superintendent.
OR -
b) serve as officer in charge of a District Jail (Remand
Centre) ; responsible for the planning and administration
of the entire program for the unit;
OR -
cl act as second in charge of a sh
Superintendent 5 or 6 z in all
at the I.F., Burwash;
ift under a Jail
Reformatories or -
OR -
d) serve as second in charge of the female unit of a jail
under a Jail Superintendent 6;
OR -
e) serve as second in charge of a Training Centre or a
physically separated forestry camp, :rovi.ding general
assistance and relieving the officer in charge during
absences :
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f) serve as officer in charge of an assigned shift
under a Jail Superintendent 5 or 4 or in all
Industrial Farms except I.F., Burwaz or at the A. G.
Brown Memorial Clinic or at the OntarioTraining
Centre, Brampton;
OR -
St) serve as officer in charge of the female unit in
all jails except under a Jail Superintendent 6,
involving the supervision of subordinate female
Correctional Officers;
OR -
h) as Assistant to the Jail Superintendent, provide
administrative assistance to a Jail Superintendent
1 and 2 and relieve the Jail Superintendent during
absences ;
OR -
i) serve as Security Officer at Adult Male institutions
responsible for all security arrangements and invest;-
gations ;
OR -
j) act as Cottage Supervisor with the responsibility
for planning and directing programs for adult
female inmates in an assigned Cottage and the
supervision of subordinate Correctional Officers
or as the Administration Supervisor in the Special
Eogram for Adult Female Offenders.
STAFFING STANDARDS:
Bas icy: See preamble.
EDUC:I\TION : Satisfactory completion of elementary
school education, preferably secondary
school education.
EXPERIENCE : ,\bout 5 vears’ experience as a Correctional
Officer including satisfactory staff super-
visory eltperirnce OR diversified experience
as a Correctional zficer with a good knowledge
of institutional operations and procedures OL
correspondingly responsible experience rjhen
entry has been at a level higher than the
Correctional Officer 1 OR a minimum of 5 ye:!rs’
recent acceptable relntx expori~ence.
XOTE recent ospcrience .$I this instance
li : 0 1, e J,? c i llC\i :i; ‘iii ::I 11, t!iC 3 >.cnr peri*,<!
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prior to appointment, with at least ? of
the !‘e:*rs being during the 3 year period
prior to appointment’ OR an equivalent
combinstion of additional education and/or
training and experience related to the pos-
ition to be occupied. For example : a B.A.
degree with specialization in one of the
Social Sciences.
PLUS acceptable staff supervisory experience,
preferable in a related environment.
PERSONAL
SUITABILITY : Ability: to meet the required medical and
physic<;1 standards as determined by the
Department of Correctional Services.
Willinrness to work shifts as reauired.
For in;titutions for male offenders only - after
m”in;-.~*rnt successful completion of the pre-
scribed Staff Training course within the
Probatisnary period OR within one year of
appointment to the ciZss and level, whichever
is the longer period.”
Position Specification and Class Allocation Forms
were also made Exhibits for the Correctional Officer 3 allocation
at Elgin-Middlesex and the Toronto West Detention. Centre, as well
as the Position Specification for the Correctional Officer 4 position
at the now defunct Woodstock Jail.
Jack Lockhart, the Deputy Superintendent at the Elgin-
Middlesex Detention Centre was the Employer’s sole witness. He
gave e\ridence regarding the duties of Shift Supervisors and C.O.
5’s on dut), at separat~e locations in the institution on both the
da!, and the afternoon shicts, but not the nis5.t shifts. His
evidence was to the effect that although C.O. 3’s were assistants
to the Shift Supervisors, :11-v we I‘C not se con2. in commnnd $1” :(
given 511 i tt and were pcrnI:te:l to i’.ycrcue ini~pendent .it~il~nwn:.
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only in cases of emergency in the most “basic situations”. Mr.
Lockhart described the Shift Supervisor at Elgin-Middlesex as
the most junior level of management and the positionof the Grievor
as the first level of supervision at the institution and the most
senior level within the bargaining unit.
Mr. Goudge , on behalf of the Grievor, argued that Class
Standards were of little assistance to the Board and were “far too
cryptic to be helpful”. He argued that ,the Grievor admittedly per-
formed many of the duties described in the Position Specification
‘Form for a C.O. 3 at Middlesex, but in addition performed a sub-
stantial number of duties not reflected in that Position Specification
Form. He argued that according to the Grievor’s own evidence the
percentage allocation of the C.O. 3’s duties were inaccurately
described in Exhibit 3. Mr. Goudge argued that the documentation
presented at the Hearing supported the re-classification request.
In addition, he urged the Board to accept the fact that the core
of the Grievor’s duties in Woodstock were substantially the same
as those performed by the Grievor at the Elgin-Middlesex complex.
On behalf of the Employer, Mr. Benedict urged the Board
to review the Class Standards, which although somewhat dated, are
the standards against which the Board must measure the Griever’s
present duties. He argued that there is a “very substantial
difference” in the Griever’s present job as compared with his
responsibilities a: Woodstock, and further ;hat the Griever’s pre
sent rr5pon5it?ilities ilo not Place !lim :Lt t!le C.0. 4 loVeI.
: -9 -
In a determination of the issue, the Grievance Settlement
Board has established a considerable volume of arbitral precedents.
As Arbitrator Katherine Swinton stated in Wheeler and Ministry of
Correctional Services, 166/i’s at p. 6:
“In classification grievances, the Board looks
to two questions: (1) does the griever’s job,
measured against the relevant class standards,
come within the higher classification which he
seeks ; and (2) even if he fails to fit within
the class standards , are there employees performing
the same duties’ as the grievor who are included
in the more senior.classificationl (Re Lynch, 43/77
at 4; Re Rounding, 18/75 at 4) .”
The same Arbitrator in Edwards and Noloney and Ministry
of Community & Social Services, 11/78 at p. 10 states:
“Job classifications often contain overlapping
duties, for it is difficult to design watertight
job compartments. This makes the task of class-
ification more difficult, although it does not
necessarily mean that the grievors, because they
perform many of the same tasks of the senior
classification, are entitled to that senior
classification (L.C.B.O. and Liquor Control Board,
j5/77 at 12; Windsor Public Utilities Commission
(1975), 7 L.A.C. (Zd) 380 (Adams)).”
And at page 11 of the same Award:
“It is often difficult to draw bright lines between
di:‘E?:ent levels (of jobs. The tasks performed 1)) . individuals in different cla,sslflcations may appear
very similar, yet it must be kept in mind that the
classifications have been designed for a purpose
whether to reflect different CmDhases with regard
to the similar tasks, or to rer’lcc1 crcnter di5cretiQn
0~1‘ responsiibi 1 i~t\’ lb!’ Thi‘z? Ian oni‘ a,i‘ the cl:ls5 i fi c;I t i oni ,
or f0 rez:‘!cct the !li~llc:- tqrca!i ~.. i , Ci!i 1 ons Llem:i”iletl 0 !- tbse
i-
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in the more senior classification (the aim being
to preserve the morale and status concerns of
those more highly qualified in a particular field
of ende avour) . An arbitration board must therefore
be particularly careful in assessing classification.
grievances where there is extensive overlap in job
duties, so that a decision does not interfere with
the overall aims of the classification system. The
onus is on the grievor to shoti that he falls within
the higher classification, and where there is exten-
sive overlap in job duties, he should show that his
job, in practice, is the same as that performed by
a person properly within the higher classification.”
Other leading Grievance Settlement Board precedent
classification Awards can be found in Lunch and the Ministry of
Health, 43/77 (Adams); Rounding et al and Minis’try of Community
and Social Services, 18/;5 (Beatty); Montague and Ministry of
Housing, 110/78 (Swinton) ; McCourt and Ministry of the Attorney
General, 198/78 (Saltman); and Irwin and Ministry of Correctional
Services, 37/79 (Eberts), to mention but a few.
On a review of the evidence in its entirety, this
Board is unable to find that the Grievor is presently improperl!
classified. The onus is upon the Griever to bring himself within
the Class Standards of the higher position. From the Griever’s
own testimony he agrees that none of the paragraphs of the Correctional
Officer 1 Class Standard applies to him iiit!l the exception of para-
graph (c) which reads:
“3ct as second in charge 0i a shiic under a Jail
Supcrint.endent 5 or 0 01 in 31i Reformatories 01
:, t the I F. , Bur:\.:~.ih ;“- -
The evidence of Deputy Superintendent Lockhart, contrar)
to the Grievor’s evidence, is that at the Elgin->liddlesex Detention
Centre, C.O. S’s are not second in charge of any shift.
In our view, the phrase “in charge of” described in
paragraph (c) means more than minimal supervisory responsibilities.
In our view it means more than assisting a more senior officer, OT
being the next highest ranking officer on an assigned shift, O?
exercising temporary basic responsibilities in an emergency situation.
As the class series preamble states:
“All Correctional Officers may be called upon
from time to time, to perform higher level
duties.....”
A comparison of the Grievor’s duties at Woodstock with his
present duties at Elgin-Middlesex illustrates certain striking dif-
ferences, the most significant of which are as follows:
The Grievor has minimal authority over staff at the
Elgin-Middlesex Institution -- no authority to assign work schedules,
no authority to authorize overtime, no authority to employ part time
staff and no authority to discipline staff. In addition,. the Grievor
does not participate in the hiring,or promotion of staff even in his
own area. and his appraisal of staff is limited to the function of
making recommendations.
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It should also be stated that there are similarities
in his duties at Woodstock and Elgin-Middlesex. We are of the
view that the Griever’s present responsibilities at Elgin-Middlesex
are more consistent with the Class Standards for Correctional Officer
S and in particular paragraph (a) which reads:
“as the first level of supervising officer, assist
a senior officer in the supervision of subordinate
Correctional Officers and the control and direction
of inmate activities ;”
The’ Board cannot find that the core of the Grievor’s
present responsibilities fit within the C.O. 4 classification. It
is understandable that the Grievor considers his job at the Elgin-
Middlesex more onerous than at Woodstock due primarily, as his own
evidence suggests, to the increased number of inmates at the new
institution.
Although we have sympathy for the plight of this Grievor,
we are unable to find that he is improperly classified at the Elgin-
Middlesex Detention Centre. In fairness to the Grievor, this Board
was impressed with his testimony which was presented-with honesty
and candor. In the result, this Grievance will be dismissed.
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DATED at Brantford, Ontario this 13th day of July, 1982.
R.L. Verity, Q.C. Vice Chairman
"I dissent" (see .attached)
R. Russell Member
D. Middleton Member
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DISSENTING OPINION‘
This is a most difficult case, particularly as
the majority report states, "In fairness to the Griever,
this Board was impressed with his testimony which was
presented with honesty and candor." On the other hand
I have difficulty arriving at the same conclusion in so
far as the only management witness, Mr. Lockhart is
concerned. By and large I felt Mr. Lockhart made his
evidence fit the problems thrown up by the grievance.
However, in his evidence, bir. Lockhart did
describe the position of the Grievor, i.e. Correctional
Officer 3 as -... the most senior level within the
bargaining unit."
In dissenting from the majority decision I do
so in part on the grounds that the classification system
in use was not properly applied to the Grievor. Moreover,
that management's evidence was designed to fit in and
uphold the fact that they had eliminated the job at
Middlesex-Elgin thathadbeenpreviously held by the Grievor,
namely, Correctional Officer 4, which was (and should
continue to be) the most senior level within the bargaining
unit.
In reviewing the evidence one could almost accuse
the managemenr: of trickery in the way :iwirhich they demored _
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.:
the Grievor. He (the Grievor) had been a C.O. 4 for a
considerable time, receiving C.O. 4 wages, the top of the
scale. When he was transferred from Woodstock to London
the management continued to pay him his C.O. 4 wages, red
circled at the then top of the C.O. 4 rate. The manage-
ment did this knowing they were going to eliminate the
C.O. 4 classification at the Middlesex-Elgin detention
centre.
As the evidence shows, the Grievor was at the
maximum of the C.O. 4 rate when he was transferred to
Uiddlesex-Elgin in 1977 but the grievance was only filed
in 1979, when the Grievor's rate of pai had fallen behind
that of a C.O. 4 rate. It is generally well known that
working people are primarily interested in their rate of
pay, not their title. So long as the Grievor was
receiving the C.O. 4 rate he was satisfied, it was only
when he fell behind that the matter became an issue. It
was, to say the least, a sly and ingenious way to ,demote an
employee with 15 years seniority.
As to the duties performed by the Grievor at
Uiddlesex-Elgin as compared to his former job at Woodstock
w!lere he was a C.O. 4, here are some of The statements
given by rhe Grievor in evidence before Khe 3oard, which
all agree was given honestly:
= ,
3
Q
a.
Q.
a.
Q.
a.
Q.
4.
Q.
a.
Q.
A.
Q.
A.
_-
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ikkat are your duties nox compared to ..vher,
you were a C.O. 4?
"A few variances but othervise the same."
How did your functions change in London?
"They didn't change at all except I'd
inspect an assigned area instead of a
whole area."
What size area in London?
"Woodstock had 35 inmates - the area in
London had up to 120 inmates with rhe s,ame
size staff."
How do you compare your responsibility now
with Woodstock .responsibility?
"I'd say responsibility is greater now;
120 inmates versus 33 with more programmes
than at Woodstock."
IIow much time do you spend at London on
supervising?
"I'd ~say 8Ofb."
Where do your reports go in London?
"TO the Superintendent directly."
Is training at Londonthessrze asat Woodstock?
"No it is increased, it's harder, they keep
changing the rules all the time, it's hard
to keep up."
In one sense this is a classical case in that the
Board has to determine whose evidence it should believe.
I believe the Grievor and when he claims "he does the
work of a C.O. -I", I think he is telling it as it is.
::illen the Griever replied to the quesrion ":ihe!l you movrcl
rl-on ~voodsr.ock to London, was ::oiir .job t+:isier or narder."
:
5 - 17 -
He answered,"Harder in the sense there were more inmates,
otherwise, it was exactly the same." I believe this is
very, very close to the actual situation.
Both management and the majority 'Board report
relies heavily on the Class Standards, all of which are
dated 1970 except C.O. 4 which was revised in 1979. Is
it a co-incidence that only C.O. 4 was revised in 1979
whereas C.O. 3 -2 and 1 remained with their old 1970
standards? One can't but help note that after this
large institution, Middlesex-Elgin Centre eliminated C.O. 4s
the class standards for this eliminated group, and they
alone were revised.
It is very significant but somewhat ignored, that
in cross examination the Grievor made the point quite force-
fully that many of his duties (as a C.O. 3) were not listed
on the Position Specification and Class Allocation form
(exhibit 3). What he was saying near the end of his cross
examination was that many of his duties fell under eshibit 4,
which is the Position Specifications for a C.O. 4.
On balance I find that management has not acted
in a forthright manner towards this long zerm employee anU
that in fact be is doing substantially the sn~me :vor!i as he
did nnen ho was a C.O. 4. before he was transferred and
dem0r:i;d LO a C.O. 3.
It therefore would be my decision that the
grievance should be allowed effective at the Time that
the C.O. 4 rate became greater than the red circled
C.O. 4 rate of the Grievor and that he be paid the
difference of his red circled rate and the higher C.O. 4
rate, to date.
July 12, 1982 RR .
R. Russell Member