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HomeMy WebLinkAbout1985-0004.Zinger et al.86-02-26. .~. ~ ~. w M nmrr 1sr. -70 orrrro. wi IZl.Y’f ace mule4 w,rw.o4t, File = OOoL185. 0003185, 0006t85, 000:183, CQo8/85. 0009t85, OOlOI65 OCll/BS. 00121BJ. 001wa5. OOl~l85, 0015185, 0016/65. 0017/85. oL.:9/85, 002ol83, QO21/05 0022185, OQ2~/85. 0026185 Ih’ THE UAUTTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING AC1 Before THE GRIEVANCE SETTLEXENI BOARD Berveen: OPSEU (D. ZtnRcr. P. AnsLeCt, K. Herltnna. t. Irvinn. - F. Hood, E. King, S. Lewis, J. l&Nell, J. ieijnen. R. ihrfrr tf. slatcr, R. Smith. F. Turner, Y. Ennis, K. toforth, Il. Langlois D. Llchry, H. Van Steeg, 0. Townsend, E. Hollerc and G. Elrik) Crievors and - The Crown ln Right of Onrrrlo (The Winirrry of Correcrlonrl Servicer) Employer Before: C. Brent, Vlcc-Chairman J. tlc!lrnus. Member D.B. tliddteton, Member For the Grievor: Ian Roland. Counsel Cowltng and Henderson Barristers and SolIcIrors For the Employer: - J.S. Senedict Nrnagcr, Sraff Rclarlons Siniscry of Correcrional Services Hearines: Ocrober 9, 1986 Ocrober 22, 1986 i 2 Thrs is one of severe1 classification gr~avances, ell dealrnp wit.7 employees at the Cuelph Correctional Centre. The Soerd only herrd cv~dence concernmg Mr. Townsend's grievance'(Ex. 31 dated September 2u, 1984. It allege. th.th. i. improperly clarrified a. .n+grrcultur.l wormer 11 and asks for the remedy of reclasslflcatlon .s an Industxl.1 .Officer. 1” view of the submisrion. made to the Board by counsel for th. Ministry regarding the effect of the decision of the Di~i~londl Court m Ontario Public Service Emolovees Union and Carol Berry etd Y. Th. -- Crown in Right of Ontario (Ministry g Community snd Social ServicesI (lYd6) unreported (One. Dlv'l. Crt.) we believe that before looking .t any of the facts we should deal with what WI consider to be the effect of thet decision on the Board’. )urisdiction .nd oblig.tion. vhen faced vith e classificetion grievance. we read the Court's decision in Berry es confirmin that amp1oye.e who corn. under the Crown gm~lovee. Collective B.rs.1ni.q a ham . etrtutory right to grieve classification apart from the collective .greement and that the collective e9re.n.~ cannot restrict thdt right That being the Easer the rcopa of the Boerd'r )urladiction in ol.es~f~c.tioncaserir notlimitedin.ny w.ybyArticlr S.1.2 of the collective agreement between the partis.. At pa9.r 12 rnd 13 of th. decision or. Juetice Reid, writing for the entire COuR, raid: These dec'ielon. IP.k. it C1e.r th.t th. individual's ri9htto grieve confsrredby s. W(2) cannot be restricted by . collective agreement. Thet being the lew, the m.)ority wee simply won9 in thinklnq its powers w.r. limited by Article 5.1.2. TheBoardie obliged to follow th. lev and no question of reasonableness erisee. Tb. quert1on thetdoes arise I. whether the Bo.rd hrdpover to require th. employer to find or frsate . cleesification for grievor.. I think it had th.t pW#er. It. .uthority under . . 19 of th. Act 1, I---- 3 untrammellad. It ‘shall dacidr tha matter’. Simply to disml9r ‘he 9ri.v.nc.r whan It acknowledges that tha 9ri.Vorr .r. wron9ly clrssifled 1s to eogty thr 9rlevurea procrdur. of my ma.nxng. It ia 1 Com*Onplrcr Of law that tha exiatenca of l right implies tha rxlrtencr ol a remedy. .’ When the court Indicates that ‘[tlha Bored la obllgod to CoLlow the law and noqueatlon of rrasonabl.nrrr l laea-, ltlrrl~ply restating the positlo” vhlch haa preval1.d l t least since tha Supreme Court of Canada decided ncLeod s 10, w et a1 _ ,, f19751 1 S.C.R. 517 that cOUrts will not defer to boarda Of rrbltrrtion when they l a callad upn to interpret statutes. That is, uhan l board of l rbltratlon or this Board 1s required to interpret statutes In the Course of determlnlnp either Jurisdiction or the merita It must be correct in lta interpretation of the statute and not rlmply 91~ the Statute l reasonable lntsrpretatlon. Put mothOr way, the Dirlrlonal Court in ou YIW was simply saying that when thlm Board La called upon to interpret statutory law, includinp the Erovn pm~loveea Collectlva sarnalninq & it aust interpret that law corrrctly or hrvo Lt8 declaloa overtwnd by the courts8 however, uhan It lntarpreta the CoLhCtLVo l grrament ItS interptstatlon cannot be overturned, evaa it the court eoneldur it T.O be rronp, unlrSS it ia patently unrerronable, Ye 40 mot con8ld.r that the pa,,.*. from Hr. JuatlC. Raid’8 dwlalon r.y, tht if the Board finds that l grievor has been wrongly clarrlflad, it la obliged to ba correct in its rsclasalflcatlon of tha grlsvororbo~ubjecttob~ln9 overturnad on Judlelal revlev. Tha obligation to elarrlfy emplOyeea 1s tha Lmployrr’r not the Board’s. xi the Board flndr that an employer hrr ban improperly class&fled, that does not chan9a the Lmploysr’r obllpatlon to classiCy nor does It ,hlfC that obLLq*tioa te this Board. Th- Board’s .‘/.. “~’ .,. ..~. obligdtlon, once it finds that dn employee’s right to be proper;y classif ied has been breached, 1s to construct dn appropridtr remedy for that breach. We do not consider that the Divisional Court in the w case changed anything with regard to these basic obllgatlonr other than to remove the remedial limitations which were placed on the Board by Article 5.1.2 of the collective agreement. It is therefore the opinion of the Board tbdt in dealing with a classificationdeclalonunfetteradby Article 5.1.2 of the collective agreement it must first determine whether the grievor has proven on mlance that he 1s improperly classified. This determination can be made in accordance with the principles established in the jurisprudence of this Board as it existed before the Divisional court decision in ferry since we do not consider that that decision dealt vlth how one determines vhether.an employee is improperly cIassitied. If the employee has not satisfied this Board that he is improperly classified, then the matter is at an end. ~If the employee has sdtlsfted the Board that he is improperly classified, thea the Board muat fashion dn appropriate remedy, which nay or mdy not be to award the grievor the elasoificatlon which he rought in hle grlevancc Before setting out the evidence regarding the grievor’s dutler and the duties of other emplcyeee at the Guelph Correctional Centre, there are some background fact8 which drc~ not disputed and which help put the .evidencs and argument into perspective. The Agricultural Worker series is not peculiar to this ninlstry, the fndustrlal Officer serlee is. class~ficacrans In the Correctional category, such as the Industrial officer series, recognise the custodial responsibility of the .ncusbanta. Classifications which dre not ln the Correctional category 5 ady not rccognire curtod1dL rerponr~bllity. Accordingly, the part189 hdV4 dgrd4d for A nudber Of yedrd that dmplOy449 rho AI4 CldsS~fr4d Ln lobe which do not normally recognlde d CustodldL component should be paid an dLlovdnce to compenldcr rhea for thrr reeponelbillty. That JllOWdnCe IS set Out In Append0 g t0 the COlleCtlVa 49rOement between the pdrcler ltx. 0 And the condltlonr necessdry to receive the d~lovdnce are dot out below As they d,+u in tha dppmdfxr (4) they Are ItOt prOfeSSlOndL Stdff’#uch 49 teAchera, nurser, rocidl worker8 ot psychologietet (bJ the posltlona to which tha employado ora dsslgned are not covered by cldsrrr vhlch dlr4ddy tdke into ACCOUnt rerponelblllty for the control of lnmdteo or udrdr, ruch As corrrctlondl Offlcrrr, InduetrlefOfKicere, Supervlrorr of Juvenllee, Obrervdtlon And Datdntion Home Workdrd, RacradtLon officws (Correctional Servicer), Trade’ IneWIJCtOrd and ProvincldL Bdi1iff8l (cl (i) they are required, for the m)or pOrtla\ of their rorklng time, to dlreCt inmdtdr or vdrdr engdyed in beneflcldl ldbart (ii) de group lsdderr/Ledd handr, they are dlrwtly rerpooalblo, for the md)Or portion oC tbalr working time, for operaclone lnrolvlng the coatto ol . number of lnmdter ot ward0 l npe9ed in beneflcidl 1dLwrr (4) they dre reeponrible for the cuetody of inrat., Or vdrda id thdir ChArpa And AZ. rdqulred to report on thalr conduct and ley Chdrgee where bredchee ol lnrtltution~L reguldtione occur. Thd grievor hde received theCUstodiAL R~sponrlbllityAl~o,WdnCO for 4s imp da ha hdr beOn c~drsifled de dI.Agr~~~ttSdl Worker. Th, grl4VOr 19 A 9rddUdtd Of th‘d.K CO1109d’d tide y.dr Ld”dSCd~ 6 T.ctino1ogi.e dlplom. CWT.. vhlch 1.. equiv.lmt to the Ontdrio Diplosa of Horticulture. lie h.s worked .t the Univerelty of Toronto e. . iar3en.r rn Ch.rge of . work crew doing mortly meintenanc. work, .t l private lendrcaping compeny in Kitchener, at the ilniverrity of Waterloo in the Biology Greenhouse., and at the Kitchener (lorticultural Society’. mckvay Gardena. He began working for the nlnistcy in September, 1981 a. . Greenhouse Officer end h.. teen eo employed .ver since. It 1. commn ground between the parties th.t the Position Speclficetion for Greenhouse Officer tEX. 4) fairly accurately idenrlties the yrievor’s duties end responsibilities. We therefore eet out the duti.s and responsibilities outlined on that sheet: 1. ~genersl ru~arvi.ion, incumbentolan., coordinates end su~ervissr the efficient - - - ,. operation & &hegre.nhouse facilitie., &I - receiving order8 for plant., ehrub., etc. via eupervieor for verioua institution. and egenci.. l uch e. Mein OfIke, Ontario Milk Board, Cectl Pacer School, Guelp,h C.C., W~legara, Quint., Semllton L Toronto Detention centre., etc. and entering orders in order book, - prepaing planting echedul.. in order to meet delivery dsteei - eatimetlng puantitiee of eupplies required, 8uch e. seedlinqr, inaectlcid.., fertllizers, planters, etc. and requirltioning euppll.. through aupervisotr - llaisinq with institutions 8nd egencier regarding delivery date8 aad method of pick-up and deliveryr - preperinq plant., fhtr, etc. for .flnal delLvery; - ensuring th.t heetinq and l ir eirculetion syrtem. in the greenhouse. .r. in eflicient working condition and adequately controlledr - recommending change. in fin.1 costs, cheeper method6 of operation, supplies, etc. to supervi8ora - recommending the cancellation of orders if overstocking of plentr or backlog of order. OCCNIS8 - eneur~ny thet Coet. end vast.. er. kept to . minimoar - supplying plentr VI. the tndustri.1 Proyrrsmer Br.nch ol nrnlrtry to C.cil1tr.r vhere plenterr produced by neplehurrt C.C. l 8 soldr - preparing perlodLc reporta to rupervlror rayudrng qreenhoura operation. 2. Suwrvlaa~ g@ Inrtructs 8n rverr~ of twelve Inmrtee e.8lon.d & a peenhou#ee, &r - eecorting work party to end from work locrtlonr - inatructlnq end l upervl~ing 1n.et.a in the vuloua operataone end procedurer l ppllceble to the greenhour. op8r8tlo8 eucb l . p..t*urltlng of l oil, trenrplrnting of reedlingr, cultlv.ting, fertiliring and weeding, use of perticidce, cleenlng of flats end pots end the goner.1 cere of l nnuele, perennielr, ornamentdl shrubs, exotic plenu, etc.1 - l esiyning inmater to rpecific tasks corameneur.te with their l ptltudeo .nd ebllltiesr - prepering written reports, eveluetlonr end dasessmente of i-tea’ progresrr - meintelnln~ inmete drsclpline, couneelling end vuninq regarding iofrectlonr rnd leymq claconQIct charger when neceeruy, - .dvleing corr.ctlon.1 ataff of any Innate aovement to or from work l eam# - l neurinp thet operetlon. l r. conducted in l ccordenc. vlth inrtltutlon repulrtlonr pertalninq to l ecurlty, indu.trl.1 eefety, etc.1 - checking Inmeter’ work for rdhetrncr to proper l tenderd., rugq.#tl.g method. of improvln9 performenca end qlvinp trcbnicel puld.flCW - superraaing work puty la thr plrntlng and maintenance of Cuelph C.C. flower beda, border., etc.8 - rupervlr~ng the construction of flatr, h.er1.n ~overr, hot beda, cold freaer, preparation end packlnq of plente for d.11v.y. etc. 1. performs other related butlo., ouch .qt - eneuring c1e.nlin.r~ end eafety of greenhoueee, equi~ent, toole. ruppller. etc. - pertorminq minor repelre to greenhoure end equipment end advlrlnq meintenence dapertment wham Igra aeaor repelrs are requiredr - l rristlnp in the deeignlng of lnstltution.1 .z.. ,._ . ~.. . . . . . . . ..~ .,... ,, ,. . flover beds, etc.1 - ensuring that inmates dr. assigned for weekend duty to maintan proper heat levels, watering of plants, etc. in the greenhousesi - other duties as~as.igned. The PosLtion Specification shows that 90% of d Greenhouse Officer’. time is equally divided between the f1r.t two set. of duties, with the remaininy lO\ being spent on the third. The grievor disputed this breakdown and estimated that the v..t malorlty Of hla working time la spent supervising inm.tes (he estimated 80 to 851 of bls time w.. spent doing this). lie said that the inmates do virtually everything which require. physical labour, and that he spends his time instructing thea how to do the vork and going from person to person ensuring that Production is on line. Se estimated that he supervised individual inmates once every fifteen to twenty minute. andin addition did the required boay count.. The grievortestifiedthathe wouldbreak down the items on the Job specification .s I1 - 101, @2 - BSI, and *3 - 5).. ‘. There are two greenhou.es’.tGuelph: . larger one approximately 100,000 cu. oft:, and. smaller one approximately 15,000 cu. ft. The grievor has an office in the era. between the two greenhouses; he is the only occupant of the office. There .re no other Ministry employees who work in the greenhouses on e regular basis. Both from the position specification and the grievor’s undisputed avidenc. it would in our view be fair to characteri. the entire greenhouse operation .s being similar in its function, equipment and oryaniration to that of a medium-rized commercial greenhouse. The greenhouse mu.t produce from seed and supply bedding plant.tothe vegetable gsrdens end flower beds at theGu.lph cbrrectiondl Centre, . . well .s market plant. ordered by other institutions. 1n order to do this the preenhouse would be functxonin$ like dny”other grower who must take dll steps to en.ure that plant. ore 9 reedy when they era required by the end user or custo~u. In operaring the greenhouse the grievor 1s under ths generdl supervision of hlS foreman. It would eppeer from the evidence thet the grievor oak.. recoamendetionr to his forandn regarding purchases of l ll eorts for the yreenhouse, including seed , end thet they dlecurs this before the loremdn dpproves ths order end sends lttohls rup.rvl.or. In this connection the grievor her input lntotheplentsto be used &n the flower beds et the lnrtltution dnd into the deslqn of those beds, rub]ect to his COremdn’s Approval. It would certeinly appear thet an reletIon to the day day operation of the greenhouse itself the grievor i. left on his own to orgdnlra the work end run lt In rddltion to the yreenhouoe, the griev& her responsibllltl.s relating to the maintenance of flower bade, lendsceplng, pronlng, hdrveetAng crops, etc. To crrry out hi. obligations with rwjard to the greenhouse end the qroundr the grievor ie l eeiyned l “rbrk’gmq bf inmate4 every day of the year. on averdge thie geng 1s mede up of eight inadtes. ha lndicdted on the Job specificetlon sheet, the grievor 19 r.Spon.lbIO iOr plcklny up the work geng in the lnetltution, l ecortfncl themtotheir phcs of work, end generelly dsslgnlng work, superririn~ work and 1n~t~cUag the inmates ln the proper procedure of soil mixing, pruning, transplanting, etc. The yrlevort.stiCiedth.tthls Lnstructlon la givenon con. to one be.18 and thet the lnmdtes must be supplied rlth knives to do some of the vork. The work gang ndy vork in the gre4nhouS4 or on the yrounds .S required. The grievor must Col10w the procedures dnd standing orders of the instleutlon AS they dpply to ell employees who supervise work yang*. II8 is responsible for preparing the verious reporte on inndtes ., . . I.~. _ ~. ...~.. 10 es ootlrned in Exhibit 4. The egu~pment usedby the grievor and hi3 work gang in the course of dornq the work includes garden Cools, trector, knives, pruning sheer,, saws, loppers, cultivators, hoes,pitchforke, spades, mowers, row-tiller, fans, heating .equipment, high intensity llghta, eleccrlcal heatinq cable, barrows, siever, and 3creen3. There is not a lot of power equipment used in the operation. When the grievor began his employment with the Ministry he wee given a basic training programme covering hie correctional duties and responslbllities. "e testified that he thought that this programme leeted approximately three weeks and covered matters dealing with the care, custody and control of inmates. In January, 1986 he ~33 also given e four day course designed for all employees who receive the custodial xesponsibility Allowance. He testified that that course dealt with the care, custody andcontrolot inmates end stressed that those receiving the Allowance were peace officers in the eyes of the law. In the institution there are employees rho work a8 truck drivers, storekeepers, canteen operators, end librarians. The grievor testified that they all have inwtes assigned to them from time to time. correctional Officers may supe~lse 3ome inn&tee doing agricultural work. In addition to the grievor's work gang, there are other gangs rho work on the grounds end doing harvesting. Those gangs are supervised by Industrial Officers end Correctional Officers. It was agreed that there is a classification of employees known as Trade Instructore and that that wee a different Category of employee from the Industrial Officers. It was also agreed that there is a different level of trade in3CructLon which goee on with Trade Instructore than with Industrial Officers. 11 The parties fllsd with us the etanderde for the Agrrculcural workers Cl*33 series 1Lx. 5) and for the Induarrial Offlcrr (Ex. 6). The relevant porclons Of those documents are set out belw: PREAMSLK ACRICULNW UORXER CLASS SElUEii TYPE OF U)Rl(: Thin esrlas covers positions of employee* engaged in a variety of agricultural duties required for the cultivation of crop., beauc~ficdtion and maintenance of grounds and the care of 11vertock and poultry at provlnci&l government buildings and institutional or experwental stations rnd farms. Work rsrignmencs for posltlonr in this series are aads in one or a combination of the following functional *rem*- Landscwinq: Plant, culclv&te and mrlntsln flower gardmnr, lawns, rhrubs and ornamental plantas reed, ferc~lira, water, mow, roll and ram lavnw prune and trim treea and ahrubs, prepare planta and flovere for floral dacorationsr mix and apply insecticides, fungicidea and herbicide& Vegetable prdenBr CultlVate and h&rrert vegetable gardenat prep&r* the qround, plant need or tranrplant qreenhouaa plants, l pply C~rtlllrerr &lld insecticldew pack end m&lnt&ln vegetables la roar housarl pick over and supply vegetables to kitchens. Creenhouseer xix, sterillze arrd prepare soil for the planting of flowers and vegetables ln yreanhaua*#t seed, pot, water, transplant and store planta, prepare and care for hoc-bedr and cold frrmerr apply insoctlcldes end fsrtilirum regulate temperaturea and ventilation in planting &rem. . . . . , ,... ._ . 12 ~. ,_... 1. ,.,. ,, . ‘Field Croa: operata tractors. sprayers and other fara machinery to plow, plant, cultivate and harvest yrain crops, apply fertlllrer and lnaecticidesi mea3ure and stake plots8 veigh, bag, grind end store grain. . . . . t4aintenance: Perform general maintenance to buildings, fences, etc.8 sharpen, adJust or make minor repairs to farm dnd garden equipmenti clear snow make md maintain sport areas andskatinqrinksr cut trees and clear debris in woodlotsr drive motor vehicles to collect and dispose of garbage, ate. GENERAL: In en institutional setting, the incumbents of positions et every level in this series may instruct and supervise wards, patients or inmates engaged in similar aqricultufal duties. Warde, patients z inmates are not,consldered subordinates Employees in these for the ~nuwose of this series. positions may be assigned co perform duties on relief or shift work basis. In all work ereas, at every loveI, employees in these positions maintain population, production and supply records for the f *forma tic* of thef r supervisors. The entry level for this series requires employees who have acquired purneymsn agricultural skills. At an experlment*l station or farm, however, the full vorkinq level 13 Agricultural Worker 2 and employees et such stations or farms are required to serve for a period of at least two years at the Agricultural Worker 1 level under the direction of professional or technical rtaff. Having acquired the necessary skills, positions at en experiment&l station or farm. where acreages are smaller are considered to equate with the extenslva operations at.lnstltutional farms due to the demandlnq nature of research work. This comparison 13 readily noted within the Definition of Term4 reference to the sire of Institutional and Experimental Fer3Is;- Definition of Terms:- Provincial Government Buildings:- This refers to government buildings situated throughout the Province vhich are surrounded by c.. -,.. 13 less ChSn 100 l Cres of property. At these bulldIngS, l grlcultur*l workers underteke lcdscaprng l d qwdsning rctivitier. Thee4 era eelnteined by the Dep&rtc\ent of Health l tontulo Ilospitels or by the DepSrtment of Reform Institutions &tReformetories l ndTr&iniSq Schools to provide food tot the institution end rehabilitetive occupation for the petientr, ineetee or vude. Instltutlon&l farma of less than 100 l cree are considered to equate with the definition for pro&da1 ocvernment hrildlngs. . . . . &xtensive Work Prommsesr- - Those functional areas of work which era so large es tc require e line supervlror directing four or cara subordinate Aqrlcultural Workers. Assigned *action or Unit of Aqricultur*l =I- This refers to the function Or qroupol functlonr which en enployes is required to direct, Thus &” employee, n&y be in cherqe of the leadscrplnq function z the lendscepinq end veqbteble gerden functlonr B In cherje of l poultry flock, gg a herd OC wine. s Cattb, 01 sheep s horsae, z ot ell these flocks end herds toqether, dependent on ChQ l ise or ch* operar1on. Leaderr- Grow supervlslon l e defined In the Position ~1~1ysis Guide. . . . . 1. Positione in direct support of profe*sionel strff at experlmentel Cerae which reqdre the epplicetion oi leboretory tachalquar. Such poeitions era l lloceted to the Agricultural Techniclen S4rl4e. 2. Positiona of Cam lekarers era l lloceted to the nenuel worker clese. 3. Positions where the drlvinq, malntenence &nd rapeir of nechenired equlpnent ie the mayor function. Such positlone are elloeetedto l mce epeclellred series 4.q. mechanic. QUALIFICATIONS: The basic requirements for all levels are indica:ed below. Additional experience and skill requirements are specified in each class level. BdJic- 1. Levels 1-4 - Grade B education1 preferably Grade 101 or an equivalent Good working knowledge of practical gardening or farming operation8 related to the field of assignment. . . . . GENERAL OUTLINE PF SERIES: First Level: Institutional and Provincial Government Buildings:- The working level for experienced agricultural workers. . . . . Level:- second Institutional and Provincial Government Buildinqsr- This is the level for group leaders who organize and direct the activitieaof subordinate agricultural YOrkeTs. . . . . Third~Level:- ,.~ Institutional& Provincial Government Buildings:- Positions at this level either direct the gardening operation at a Provincial Government buildingor araincharge of an assigned function on an insZtutiona1 farm. . . . . AGCRICULTUPAL !KMXER 1 M DEFINITION: This class covers positions of employees assigned duties in one or several of the functional areas of agricultural work. At a provincial government building or .insritutional farm, these employees work under the general supervision and withla the routines established by senior agricultural staff. They usually receive detailed instruction only in 15 unusual situations. Refer to Preamble. e LEVEL REWIRS!4ENTSr Ablllty to Callow oral and written instructions. ~GRICULIVRAL WFXtR 2 & DEFINITIONS This class cOvarSpOs1tlonsof groupleaders oz two or more employees performing agricultural work at a provincial government building or institutional farm, or positlonm of fully trained employees at an experlmenral station or farm. The work is performed under the general supervlaion of a professional administrative or agricultural supervisor and according to established methods and procedures. As group leaders, they organire and direct the dally activities of their subordinates and partlclpate in the duties of their assignedarea. They detarmineprioritlea, explain new pro)scrs, provide instruction in.the use of squlpment.and check the accuracy and Completeness of the work. They transmit the instructions of tholr supervisor to l ubordlnatee in the aeslgnrd section. They recommend manpower and equipment requirements and changes in work methods for improved l fflclency. They caution their rubordlnates but norm&lly refer disciplinary problams to tbafr ruparviror. . . . . WALIPICATIoN.+ Refer to Preamble. CLASS LEVEL RJZOUIREKWTSr Par positions at an oxperlmental ststlon or farm - at least two years’ eXperlenca at the AgrlCultural worker 1 level. rot 1nrtitutiona1 agricultural work - l bllltyto direct and revxew the work of other eqloyear. . . 16 AGRICULTURU WDRXER 3 M D&FINITION: This class covers positions of employees who are held fully responsible for the complete operation of an assigned section of agricultural work at a provincial government building or institutional farm. They may sup-ervise up to three subordinate agricultural workers. In some positions, these employees plan and direct the landscaping and gardening operation at a provincial government'building. Tliey select varieties of trees, shrubs, flowers and vegetables. They requisition quantities of seeds, fertiliser, chemicals and implements. They train, supervise and discipline any assigned subordinates. In most of the positions in this work area, they direct the operation of a greenhouse and hot and cold frames, supervising temperature, humidity and ventltation .controls andproviding flowers for institutional US.. In other positions, these employees supervise a unit of agricultural work et en institu'ional farm such as the landscaping and/or gardening operation or the management of poultry and/or livestock. In most positions as supervising gardeners, they .direct the operation of a greenhouse and hot and cold frames to provide floral and/or vegetable requiremente for the institution. As supervisors in charge of livestock or poultry, et an institutional Care, they plan and schedule the feeding, cleaning and tending of their herds and flocks. In these positions, they conduct the breeding programme, cull poor producers, select brood stock and direct the slaughtering of poultry and farm animals. They diagnose ailments. administer medications or refer problems to a veterinarian. In some positions, they also direct the separating, bottling, storage and distribution of milk. In all these positions, they plan and estimate production requirements and requisition supplies sub]ect to the approval of their supervisor. They schedule the activities of their subordinates and direct them in the care and maintenance of the assigned area. . . . . 17 Basic:' Refer to Prssmbla. CLASS LNEL REQUIPS..HENTSr For positions at an experimentalstat~on or Caru - At lease two years' experiencs at the Agrsultural Worker 2 level, and ability to direct and rev1.w the work of other employees. For pcr~tlone et lnstltutlonal farms or provincial government buildings - rupervlaory l blllty, u~llugnese to accept responslbillty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IEX. 61 INDUSTRIaL OPPICER 1 M DEFINITION: Employees in posltionr allocated to this class xnstruct and direct an assigned group of Inmates ln the processing In volume of varioue products, food, clothing and maintenance supplies at reformatories and industzl.1 farms. These dut&ss do not require skrlls to the level of the designated tradee. They share rerponrlblllty with their supervisor*, and with any custodial offlcere assIgned, for the escurlty and work performance of inmate helper.. They ensure the obvervanco of safety precautmns, demonstrate methods, and a&slat In maintaining qu.llty control and lo meeting production rchedulsr. They rubait report. on any lrragularltle. and make recommendation. for changes in routlne or for disciplinary l ctloa. They l nrure the proper use of equipment end direct and essiat la necessery repair* In m3st posltfone they p.rtlelp.te in 411 operations l u~rvlsed in order to &mon.trate and maintain reasonable work eandards. Q"ALIFICATIONS: * 1. Grade 0 education, preferably Grsda 1Q8 pr.ctlc.1 knowledge of skills r.l.tad to the work to be performed. 2. Two year. of satisC.ctory related experience, part of which nay have been on custodial dutxes. 3. Supervisory and Instructional .blllcy related .., . _ . . . ..~.,..>..-.I . . . . _~ ._ .._......... . _. ,. _.. to the kind of vork to be performed; abili'ty to deal effectively with inmates: abllxty to assess standards of inmates' industry and conduct. INDJSTRIkL OFFICER 2 M DEFINITION: Employees in positions allocated to thia class are enqaged in the supervision of work and instruction of inmates in various industries at reformatories and industrial farmr. In some positions, they are in charqe of a small industrial operation such as the Shoe Shop at nimico or the Sraillr Print Shop dt Hillbrook. r” these positions they are responsible for estimating and procuresent of materials. In other positions, they assist in the management of a production operation not requiring skills of any of the designated trades such as the Woollen Mill at Cuelph or the Marker Plant at Millbrook. In many of these positions, they require specialised processinq knob-ledges end skills and are responsible to the manager for particular controls or skilled operetions. They train inmetes in the required processee to which they are assigned, allocate duties and check quality end quantity of production. They are responsible for the servicing, proper use and ddherence~to safety precautions in the operation of the equipment. They have responsibility for production schedules, work standards, shop maintenance end security arrangements I" their *re*. They nay perform the more complex work aa required or any of the work in order to demonstrate procedure or to expedite production as needed. QUALIFICATIONS: 1. Grade 8 education, preferably Grade 101 varied practical knowledge of skills related to the vork to b-~ performed. 2’. TWO years of satisfactory experience as en Industrial Officer 1 Intheappropriatetype of work or its eq"iVala"t. 3. Ability to deal effectively with inmates; ability to SssesS standsrds of inmete8' rndustry and cond*.ctt ability to estimate requirements, to establish production methods end to control production and quality es required. INDUSTRTU OFFICER 1 u DEFINITION; Employees in poeitiona rlloceted to thie cldss mrnaqe A smdll to medium or raldtively complex production operrtlon l uch de the Tdilor Shop dt Rldeau Induetridl Fdrm, tha Tailor Shop et Nillbrook, or the Upholstery Shop at Guelph, or the Tdilor Shop de Burvdrh. 3 They asslrt in management of the luger or more complaxproduction operation8 ruch ae the arick and 2110 nil1 at nim1c0, the ndchlne Shop, or tha Tailor Shop et Guelph. As q andqerr, they dre responriblr for estimating end procurement of materials, for dlscussinq costs vlth superiors and for mdkinq recommendations on new products tobaprocessed. They make recommendations to A superior on stdff personnel mdtters. As asslstdnts to managers, they share tha responsibility for quantity and quality of production end for security of inndtes. They personally perform work requiring technical akill, experience end knowledqe c-ampdrable to >ouneymdn standing in a trade. These ezeployees trdin groups ol inmdtes in yood work habit, and technical ekills, contxol th. quality of production and resign inmater to varlour tdsko in rccordmca with their cdpebilltice. They prepdrs deily reports on inmdtee' industry end conduct. They may take over Any position In the production routine in order to investigate dnd correct complaints ortoda~onrtr~t~prop~r work procedurer. yUNJPICATIONSr 1. Preferably Greda 10 aducationt satisfactory completion of apprenticeship In the trdde required by the dutiee to ba periormsd l or an acceptable cquivelent combination of training and experience. 2. About five yearn of acceptable experience at the ]ourneynan level in the reldted trade or i”bJSuy. 3. supervisory and inst.ructiondl dbilltyl ability co sketch or explarn in such a way AS to be underetood by unrkilled rorkmmr ability to I . ,...,, . . . ~.... ..: ..I ,. . ,, ~~. ~. 20 assess standards of inndtes’ industry and conduct! ability to deal effectively vlth insaterr ability to estimate supplies, to establish production methods dnd to control westa end quality1 ability to recommend and evaluate new products for processing. . iihere the equivalent applies, the person will be required to successfully complete e Civil Service Trades Test where one exists. The Employer led evidence concernmg the method by which Jobs dre classified end also the method by which the Custodial Responsibilrty AllowdnCe is paid. Mr. Portoghese, e Senior Personnel Administrdtor Compensation and Classification, testified that the Allowance is paid to employees in classifications vho dre not normally required to supervise inmates and who supervise inmates for more then SOa of their vorking time. de defined’normal” in this context as meaning es described in the class standards. There WAS evidence yiven by Hr. Karl Crorrenthaler, the Senior Aeeietant Superintendent Industries end Services at Guelph, his evidence dealt primarily with the work dreds where those employees currently classified as Industrial officers work. Insofar es it dealt with the grievor’s work end the greenhouse operation it did not in any wey contradic’t the grievor’s evidence, so we will deal only with the avldence which related to other operetions. The woolen nil1 has three employeesr e manager end two Industrial officers 1. Produced in the mill dre wool blankets, wool socks, and flame proof pill?v materials for assembly~in the Laundry. The mill tekee the rew wool end through a variety of processes produces the finished Product. It is A continuous flow operation, end the mill conteine all of the machinery which would be approp;iate for such an entdrprioe, such AS carding machines, spinning machinea, looms, etc. 21 There are roughly ciqhcaan insates in the mill at any one time; lt producer 5,OUO blankets, 50,000 pairs of socks, and 12,000 pillows r”.ry year. The Woodvorklnq Plrnt haa threa employees 1” the plAnt and two 1” the bush gang. Inthaplantther. 1s a q .nager, .n asairtant ma”rg.r, who 1s a” Industrial~tficar 3, and .” Indurtrial Oflicrr 1. In the bush 9a”y there Is a” Xndurtr1al 0fflc.r 2 And a” Indurtrial Olficar 1. The bush 9an9 doe. not Operata any lOn9ar ainca tha plant began using netal legs for the tables produced thora. The offxers have been reassiyned to other areas, including 4 utlllty gang on the grounds. when the bush ganq was caperatIng it vent out to designated wooded area, to cut down trees whLch would ba used 1” the mdnufacture of plcnlc tao1es. The inmates would work primarily with chain saws in thlr operation. Tha plant itself produces plcnlc tables and laminated oak components CO? security furniture. The plant haa the sort of mchinory appropriate to the operations, such as debarking machina, drillr, trim saw,, large band saw,, planing machIna, equipment for staining, etc. some of the equipment can br very danyeroua to operate, mo constant supervision of inmates vorklng on it is reptired There are betwaen tualw and eighteen inFAtes .q.loyed there, and they produce 2,500 picnic tables each year, along with l large quantity or the oak turnirurc The Textile Shop has four employees: a nanager, vho Is an Industrial Officer 3, a” Assistant Manager, who la a” Industrial Officer 2, dnd two 1ndus:rlalOflicerr 1. The primary work ol the shop 1s to produce pants and ahxrtr for Institutional wear. It also maker property bags and aacurlty qounr and blankats Ior ConClnament area& It producrr . . 22 between 30,000 and 40,OUO articles per year. The shop has thirty reqular commercial sewing machines, double needle mechines, button and button hole machines, steam presses, cutting table and saw, and a banding machine. The manager designs.nev products and makes up the patterns. The cutting 1s done by the employees and the inmates do the rest of the operations under the instruction and supervision of the staff. * The Jobbing Shop has four employees: .a Manager, rho 1s a” 1ndustrl.l Officer 3, en ASSiStWIt Manager, who is an Industrial officer 2, and two Industrial Officers 1. Custom products are produced there. we were told, by way of example, that the shop produces beds, security doors, tables, and prefabricated Jail cells. The shop is equipped with weldlng machines, plasma cutter, mitre saws, cut off saws, spray booth, sprayinq eyuipment,,+heet metal break and shearing machinery, and spot welders. There are between eighteen and twenty-five inmates assigned there dependiny on orders. The ~shop produces about $300.000.00 worth of beds, dcwrs agd chairs per year. The Laundry has three employees - a nanaqer, rho is a” Industrl.1 Officer 3, and two Intistri.1 officers 1. hpproximately 500,000 lbs. of laundry is processed annually. The work of the laundry comes from the institution itself and two other institutions. In addition, inmates in the laundry work stuffing the fireproof plllovs, sewing them up, packing them and shipplnq them. The laundry ~o”t.l”s the washers, dryers, and pressing equipment appropriate to a commercial laundry. It also contains machinery for fluffing the pillow stuffing, and sevlng machines . for the p~illow const~ction and for repairs dons in the laundry. There are twenty inmates assigned to the laundry. 23 About six or aeven years ago there was a Cannery at Guelph. It employed four employees: a Manager, rho was an Industrldl Officer 5, an *ss,,tant !4**.y4r, who was an IndustriaL officer 2. and two IndusulaL officer* 1. The Cannery canned tomatoes, cherries, apples, peas, CaccOts, etc. for use in tha lnatitutlonr. It had equipment for vashlnq, sorting, coring, fillin cans, closing cane, sterilirinq, and labclllng. Ten to twelve inmates were assigned to it vs have consideredths submlrrlonrofthep*rtier ln relatron to this case and have read the authorities to which we were referred For the sake of keeplnq this decisron a manageable length, and with our apologies to counsel, we ~111 not reproduce thelr arguments in any detarl, but will try to deal with the issues raised rn the course of our declslon. we ~111 list the cases cited to us other than the ~erfy case, .,hlch we have already dealt vlth at the CommwCemOnt of this declslon. The other cases cited were: Roundin% St (GSB File 18/75)1 purse11 (GSB Ptle 6490411 AlkinS, c s (GSB Lila 603/801 Parker (GSB Pils 107/8331 Edwards and noloney (GSB Pile ll/lSLr Lynch (GSB Ill* 43/77)1 - Sakkerc s & (GSB File 226/801 Xullln (GSB rile 1263/801 & Onlted Slectrical, Radio and nachina Workers, Local S2s, & prrantl-Packard Electric & (19701, 22 UC 219 ~Yeatherllll~ j& United Automobile Workers, Local 127. and Saton Sorlnas Canada Ltd. (lY68). 19 LAC 329 IHanrahan), Brick et al. (GSB 1110 564/SOlf Freemaq (GSB Fllr 393/81)7 Wilson (GSB Pile 53S/SlLr w et al. (CSD Pil*s 107/84. 108/84, lSV/S4, 190/a4, 220/84)r and Camsbell, e & (GSB Pile 4Sl/S2). AS we have already noted, the Clrstquestlon to asked 1s whether the grievor la properly Cldsslfld. we conaider that the proper ray to determlne the Issue In this case 1s to cornpars the qrievor's duties and responsioilltier to the class definition of Agricultural Worker 2 rhlch . . . . .._...._.... , ,,........ ..,... . ..~~._ ..i... .,,,.. . ..~..‘. .t. . . . -,. .~ .,,~ 24 a?pears in Exhibit 5. Given the basic detinltione of terms used in the Agricultural worker class standard, the Guelph Correctional Centre would have to be cons&dared either a "ProVincialGoVernment Building'or an "Institutional Farm.. The class definition for Agricultural Worker-2, insofar ae it applies to either of those places of vork, clearly covere only l qroupleadereoftwoor more employee8 performing agricultural work at a provincial government building or inst$tutional farm ,..O The grievor is not a group leader. There are no Other employees vho &rk 6s his subordinates. The class standards clearly indicate that inmates at institutions do not meet the definition of subordinates. To argue that the grievor is more than a Agricultural Worker 1 and less than an Agricultural worker 3 and s-3 must be an Agricultural Worker 2 is to ignore what the class definitions say in the Agricultural worker S.SrLeS. It would appear that the proyrassion within the series is based upon greater responsibility in relation to the operation of a particular unitand/or the supervision of employees. The AgriCultural Worker 2 classifrcatlon IS dependent solely tipon the eupe~lsion of employees; it is illtpossible to read It reasonably otherwise. The Agricultural Worker 3 classification is -fully responsible for the complete operation of an assigned section of agricultural work at a provincial government building or institutional farm' and %sy" slso supervise up to three subordinates. Therefore, unlike the Agricultural Worker 2, it contemplatea that there may be nd supervision of employees; however, in the sample duties when dealing with greenhouse operation it refers to the Agricultural Worker 3.as being awsupervisinggardener*directing the operation of the ~greenhouse. Presumably the phrase 'supervising gardener- means that there must be subordinate employees working there I I - 25 as well. Assum~nq that the grievor is properly within the Agrrculcurel ;lorker series, end that his raspoosrbiLity in relation to the qresnhouse ogeretlon does not meet the test of being ‘fulLy rerponaiblem ot l ‘supervlsmg gsrdenerm. it Is not a proper act of claeslficat~on, ,I* our “14”, to place the Job in l clrssificetlon where the dutler do not met the clasr definition by eny stretch of the imaglnatlon or of the words used to define the clesr. It is therefore our view thet the grievor is not properly classified es en Agriculture1 Yorker 2. In detereininy this we accept, ee indeed l ll of the ceses do , thet we must tdke the Employer's )ob clessiflcatlon system es it exist% Thle means thet the &mp;oyer euet abide by its own classification system end classify properly within thee system. Therefore, If it. asserts thee the grrevor’s 100 is properly classlfled and then is found to have placed -de )ob ln II classification in its syrtem which on Lte fete is clerrly inapproprlbte to describe the duties which the prlevor performs, then it must reclassify the lob. : we eyree Ruth that the Iact thet the grievor la bald the Custodiel Respensibillty Allovenca 1s Irrelevent wheti deterrintig‘i#hether the Job is properly cldssif ied The payment of the ellowence la consistent with the Employer’e position that the job in question 11 not one rhlch Ie In the correctlonel series where custodiel responsibilitier in reletlon to inmmtesare recognised. Clearly, whenever the l llorence is peld, the employer ir recoynleiny that the employee Is celled upontoperform cuatodiel dutiee. It l eeuraee thet there le l proper claeslflcetlon of the employee’s )ob before the l llowence becomes payable. If the job is not properly clessifled, the factthetthe l llouence is paid does not correct thet wrong. We do agree, though, thet if en employee’s lob Ls properly vlthln l cless serlee which doee not recognite such :._ ., ..:. .; , ., .., ,. __ .._. ~. . . . .,..~.., .,... .._. 26 responsibility as being part of the lob, then the fact that those responsibilities are assigned when the lob is performed withia a correctional facility should not enable the employee to claim that his 105, should be classified in any of the 'classes which already take into account responsibility for the control of inmates . . . . IEX. 1). Before Leaving the subject of the allowmce, there era come aspects of the evidence which should be looked at and which may properly be Looked at in the context of the allovance. The grievor testified that he disagreed with the breakdown of duties in his lob specification and believed thdt somethiny over 80% of his time was spent in the supervision, instruction and control of inmates. MS job specification lists those duties as requiring 4S\ of his time. The allowance is payable when employees in defined positions gare required, for the ma]or portion of their working time, to direct inmates . . . engaged in beneficial labour . .." Mr‘. Portoghese testified that the allowance wee payable vhenavar more than SO\ of the employees time was spent in the supervLsion of inmates and that he considere~d that the grievor was properly in receipt ot the allowdnce. In view of thim, we must accept the grievor's contention that the lob specification 10 in error in listing the amount of time which he spends supervising inmates at lese than 50%. and we must conclude that he does indeed spend the maprity of his working time involved ln such supervision. As we perceive the vork of the Industrial Officer class series, those employed therein supervise and instruct inmates in beneficial work ,. designed to increase the self-sufficiency of the institution. They do not teach inmrt'ei sophisticated lob skills, but are primarily concerned with the teaching of basic work skills and WoFk habits. ln general, 21 they Are charged with runniny An enterprise to produce certrin end products using the labour ol inmace% In our view this certainly could deScrloe the greenhouse OperatiOn. The greenhouse offxer Is cherged with the production of Various sozte of seedlings for.use by the inscltution And by other InstitutionS, using the Labour of inmates to Achieve this end. In OUT vie”, the strongest Argument AgAinst the suitrbillty cf the InduStrlAlofficer class series for r]ob suchrsthe one before us 10 thAt the cldss series WAS intended to describe solely non-AgricuLturAL )obS or light m%striel SitUatiOnS. The problem with such A position is that the class datinltions with which we were supplied refer to ~V~I~OUS zndustrles at . . . industrial farms. (ExA IndusUiel Officer 2 class standard). The board WAS informed that lndusuisl farms no Longer exist, hovever, we were led to believe thAt they were working fAras where such things ae deiry operations were undertaken. In rny event, the Industrial officer 3 class definition refers to *the tailor Shop at aideru InduAtriAl FArm= f&X. 61, And the IndustrlAL Officer 1 cl~rr definition refers to -the processing la volume of . . . food . . . at reformatories And industriel fsrms. (Sx. 6) so it oey be thAt the industrial farma were not totALly sgrlculturel, or that the Iobr rhrch were non-Agriculture1 At the ln6uetrisl fsrms fell within the Induetrial Offic4t class Series, or that AqrlCUlturAl end sOPAgricuLturAL jobe At in&etrirl ferns fell vi&in the Induetrlel Officer clees eerier. We were given dlctlonAry definitions for ‘lndustriAl* end Yndustry’. Although not from the same Aouzce es those read to us, we belLeve that the folloringdeflnltlone Zroe~Cenadien Dictionrry 11983) are essentially the same es those ?eAd to us8 InduetrlAL . . . 1 of or resulting from industry or 28 productive labour: industrial oroducta. 2 having to do with or connected vith an industry or industries: ~industrial exhibition. industriel workers. 3 for use in industry. 4 of or having to do with the workera Ln industries: industrial ~"SUranCe. a.. industry . . . 1 any branch of business, trade or manufacture: the steel industry, a automobile industry. 2 ell such entergrieee taken collectively: Candian industry & exoandinq. 3 systematic work or labor. 4 steady effort) close attention to work: Industry _ and thrift Lavor 8UCCess. Counsel for the grievor alsopointedoutto usthatone speaks of the 'agricultural Industry. andthattheoperarions with which we are concerned are in essence those of e commercial greenhouse operation. We ,,ere also referred to the fact that the bush gang which operated et Guelph at the time of the grievance did not engage in manufacturing or processingof any kind, andyetuas under the direction of Industrial Officers. Reference was also made to the fact that both Industrial Officers andCorrectio"elOfficere ere in charge of vork gangs doing basic landscaping work. were it not~thatthe~IndustrielOfficar class series on its face E:. . ; ,: does appear to contemplate work done in non-manufacturing enterprises, and that in fact Industriel Officers work in non-menufacturinq '?' &.n~rLses, such es bush gMge, then the ergument of the Employer that the Industrial Officer class eerier is limited to non-agriculture1 , enterprises would be appealing. The arqulaent would be eepeclally appealing since the Agricultural Worker Class series does seem to fit so well to those who are employed in landscaping, and greenhouse operat1onr. The reel difficulty in,this situation may be that there is too much of a disparity between the non-correctionalclarsifications, ouch es ,...., _.. ~....... . . . _.... I.._,., ,.~ .,., L. ,,..,._I .,.~.,_ 23 agricultural worker, which require virtually the same respmslbllities and comparable skills as 4mplOyeer in the Industrial Offlc4: class serl*s, end the correctionel classifications. Based on the evidence before us we must conclude that the grievor is e queli<ied, well-treiaed horticulture and lmdecape techniclen who con&ctr em operation which, in terms of work exposur4 for th4 inmat4s, is compuabl4 to the work of ..- e coaaercial grouer and LandsceSe operatlon. There is planning. there is production end preperetion of roil, there is scheduling of production, there is monitoring and cerlng fortheplentr. In short, there IS the very operation rhlch the inmate would find in a work situation vith a greenhouse operator end landscape sarvice. w4 Cannot see that this work situation is different in kind for the inmate than thet vhrch ho would find in the Woolen ~111, Laundry, etc. Furthor, vzth the excepclon that the enterprise is hot minufa&rrlng e product, ., we consider that the same sort Of plannmg, work scheduling, material ordering, and production scheduling q uet 90 on in the greenhouse operation as would have to go on In the Woolen *ill, Leundry, Text114 shop, etc. Not only that, but vhsn employees aust do the sam4 work side hy l ide, such l e aup4rvlsin9 work gangs on the grounde dolnq gardening work, it ie ineviteblo thet those l mployoes rho are belnq peid lass for the sas4 work rhich other employees la different classifications do should begxn to question thair clasrificetions. The grievor originally asked to be roclesslfiod as Industrlel officer 2. During the argument, the remady roguested wee Industriel officer 1. The Employer has taken the poeition throughout thet the Xgrlculturel worker 2 classification Is correct. W4 have l lreedy concluded thet the Agrrculturel WOrkOr 2 cleselficetion is not proper given the grievor’s Job. If it 1s indesd appropriate for the graevor’s JO I lob to stay in the Agricultural Worker series, then it would appear that there is no class definition within that series which adequately describes his job, and some other classification within that series will have to be created to deal with the job. (In this connection, it may be that the Agricultural Worker 3 classification could be appropriate if it recoqniaed the situation where a gardener had complato responsibility for the greenhouse but not as a asupervising gardenera. however, in view of the fact that there is no class definition within the class series which adequately fits the grievor’s lob, and in view of the fact that the Industrial Officer class series is available to the Employer for classifying employees engaged in work on industrial farms, it may be most appropriate for the grievor to be reclassified as an Industrial Of ricer. In that connection, we note that the Industrial officer 2 is an appropriate classification for someone who is ain charge of a small industrial operation. and in that capacity would be ‘responsible for estimating and procurement of q aterialse. we consider that the greenhouse operation can fall within the dafinition of ‘small industrial operation’ as opposed to ‘small to medium or relatively complex production operation’ which ie found ln the Industrial Officer 3 class dsf inition. we therefort, consider that the most appropriate remedy for ,tha grievor is ia) eithor the creation of a new classification within the Agricultural worker series which would not be dependent on supervision of employees or (b) the removal of rho grievor from the Agricultural Worker class series and placing him in the Industrial Of I icer 2 classification, with the racognitlon that the Industrial officer class series la not limited to manufdcturinq activities. For all of the reasons set out above, the grievance is allowed and I * ,, ,. __,~.,. . . . . .’ ,. i 31 I the Employer 1s ordered to reclassify the grievor in a CldssifiCatlOn vhrch would properly and adequately reflect his Job duties end responsibllltres according to the guidallnea which we have set Out in the preceding paragraph. The Employer is further ordered to compensate the qrievor for the difference in compenretlon between the two classifications for the period commencing twenty days prior to thr filing of the qrievanc? and ending the rffactivo d&to of the reclassification. w4 vi11 remain reiasd of the mattor should the parties be unable to agree if a new clsssificatlon is crcated, whether that claas~f~cation id proper, or on the amount of compensation payable to the grievor. DATED AT LCNDCN, OHTMUO HIS 26 DAY Or Februrry , 1987 &!I 7it&+ Ceil mea, Vice-Chalrxan I. w 1Jaclrrded) D. 8. niddleton, Member DISSEST The draft avard submitted by the Chairperson of this Board raised some serious concerns with this member which vera set out in lerter for?!, but resulted in no acceptable change either in the back-up argument or thrust of the Award. In such a situation little else can be done othqr than LO put out !~n abbreviated form the %alient pointr,Jn vhich we differ, as a formal dissent. ;,~a Award argumentatively appears to hinge on the decision set out on Page 29 end sentence:- “We have already ccncluded that the Agricultural Worker 2 classification is not proper given the grievor’s job.” On Page 26 we read what appears to be the main factor in this determination namely that on close examination of that Class Standard:- “The Agricultural Worker 2 Classification is dependent solely upon the supervision of employees, it is impossible to read it otherwise.” This member contends that undue weight is being given to the composition of the work force being supervised when the evidence at our hearing was to the effect that the job re- sponsibilities 4s performed by Mr. Townsend (other than the percentages) fitted squarely into the requirements of the relevant class standard and job specification namely Asricultural Worker 2. This is patcicularly so since Hr. Tovnrend was at the time of the grievance classified as Agrlcul~urol Worker 2 ATYPICAL and the payment LQ him OF Custodirl Responsibility Allowdnce depends on the fact that he supervises lnmater (Appendix 9C(ii)) not employees of chc Mniscry. The nomenclature “ATYPICAL” which is commonly found in the ministries of the Crown is designed to recognire that certafn individuals do have job duties and responsibilities which differ from those set out lo the class standard. but, ;iho s:;wld not be recla~ssified within their ovn Series or any other, because chetr acting classificaclo” is the most ..,, ,., . ~.. Page 2 appropriate one and any other would be a misfit by comparisio”. AS noted in the Award there are numerous Agriculturrl uockerr 2 elsewhere in the PGblic Sector who do not supervire prison inmate5, and are not eligible for C.R.A., or clasrified prerumably therefore 15 ATYPICAL. Such perrons obtain considerably less pay for the same horriculturrl expcrcise as Ur. Townrend, rnd can scarce\y obtain the Indusrrlal officer clrssificrtion rating requested by the grievor. because thrc classification series is only found in the Ministry of Correctional Services with whtch the Board is concerned and not I” chclr 0”” !41”15try l g. Envir- onment (approx. 26 in number). This member then concludes that Hr. Townsend should be confirmed ln our Award as he I5 presently classified vithout change, and continue to receive C.R.A. because the nature of the work force he leads Is disparate from the malnstredm of those in the same classification elsewhere in the Public Service ergo ATYPIC.4L. In all other re8ards hovever It is clearly from study of the sought Industrial officer rating rhac to place him in that serier would be inappropriate. The Industrial officer Standards ignoring unimportant varicurs, confirms that these occupying inmace are lc~rninp mschtnc tending skll!r whether it be laundry or making of park benches or uniforms and shirts fc- Inmates use, and arc horticulturalirts as is Townsend “here :hc nature of living things from reed5 tc flowers and shrubs ts the compelling device of the work of his 5upervised inmates. It 1s my respectful suggertion that reliance on the Berry ward in this ca5e a5 outlined 1s our herringsis counter productive and based on scant and non-compelling evidence. Aristng from reliance on the Berry award and the remedial authority set out there ln, comes another matter which gives this member very grave toncern. If this Board confirm5 by its Award chat Mr. Townsend is incorrectly classified, and the order 5et out at the top of Page 31 still stands. then I consider it quite o”t of order to Page 3 prejudice in advance the outcome of the reclassification process undertaken by the Ministry by ordering In outcome payment of compensation to the grievor Hi. Tovnsend. I doubt very much whether this CONSEQUENT past of the award flows as a factual or logical consequent from the Berry Award or is appropriate conscrtcted as it vill be to the Ministry of Corrections and whose C.R.A. is already applicable for complemenr of work force 5easons in addition to his regular pay Agricultural Worker 2. This member can easily envisage similar situations vhere a reclassified employee by Arbitral authority could and should be paid the same or less than he earned at the time of his grievance. Maybe this case is one in point where he does not supervise employees in his class standard description, but inmates for which he is separately pafd and in my view most adequately. For the above reasons this member voulh have confirmed MC. Townsend (Contract 51.2) In his existly classification and that his grievance thereby fails.