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HomeMy WebLinkAbout1987-1520.Barkley and Jones.90-11-13SETTLEMENT RkGLEMENT DES GRIEFS‘ BETWEEN BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING: 1520/87, 1521/87 IN TEE RATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Barkley/Jones) - and - The Crown in Right of Ontario (Ministry of.Correctional Senrices) B. Kirkwood S. Urbain F. Collict S. Watson Counsel ,irperson Vice-Cha Member Member Gowling, Strathy 8 Henderson Barristers & Solicitors L. Szorady Senior officer Ministry of Correctional Services June 11, 19 1990 October 11, 1990 Grievor Employer DECISION The grievers are employed as Maintenance Electricians at the Rideau Correctional Centre, Burritt's Rapids, Ontario. The qrievors claimed that they are improperly classified, and asked the Board to classify them as Industrial Officers 3, or alternatively as Industrial Officers 2 or 1 in 'the Industrial Officers series, or alternarively as Trade Instructors 3 in the Trade Instructor series. Alternatively, they asked the board to order the Ministry to create a new and appropriate classification for them. The Union's counsel argued that the classification was improper as their duties did not conform to the Class Standard in four ways: 1) the inmates performed the electrical work, and therefore did not assist the qrievors in their work; 2) the qrievors spent much of their time instructing and supervising the inmates and did not spend at least 60% of their time doing electrical work; 3) custodial work was an integral part of their job and reduced the amount of time available to do electrical maintenance work; and 3) the qrievors were engaged in production. The Ministry's counsel submitted that as found in the decisions of &oundina et aL and Ministrv of Community Page 3 Servm, ( D.M. Beatty), e and wtrv of Cs Servw G.S.B.# 11/05; 1396/88A (B.A.Kirkwood), d et al.) and utrv of Correctional Servm G.S.B.# 39/89 (E.K.Slone), the onus is on the union to prove that the qrievors are improperly classified, It was the Ministry's position that the qrievors' duties are properly reflected in the standard of a Maintenance Electrician. She acknowledged thatthe.qrievors have custodial duties, but submitted that the custodial duties are part of their duties and the qrievors are compensated for these duties by means of the Custody Responsibility Allowance, which is provided for in Appendix 8 CC) (I), as attached to the collective agreement. The Board in the .En.nis. qchuler (supra) case summarised the tests that are to be applied when determining whether the qrievors are properly classified, when the Board stated at pages 3 and 4 of the decision: As stated in the ~decision of (OPSEU(RoundinqJ arid The Crown In U@t of the P=ovin..ce , * G.S.B. la/75 (D.M. Beatty), the onus is upon the union to prove that the employer is not conforming to the classification system which has been established or has, been agreed to. Therefore the union must establish on a balance of probabilities that the qrievors' jobs do not conform to their job classification. In order for the grievors to obtain a higher classification, the Union must persuade the Board that significant job duties are beyond those assigned to the present classification and constitute significant duties of the hi.qher classification that the qrievors seek.(QPSEU (M.Hilson) & The Crown in Riaht of Ontario , . rv of Education) G.S.B. 535/04 (Roberts), th) ande Crown in Raqht of Ontario , , . rv of Tran.a&xortatlonand Communlcatlons G.S.B. 26/80 (~Roberts), QPSRJJ (D.Freeman)' Cro n in Riqht of Ontario * (-try of Revenue) # . G.SyB. 323/81 (R.L. Verity)). Page4 As found in many of the cases of the Grievance Settlement Board, and as referred to in OPSEULM. . . The w in w of Om of G.S.B. 107/83 (P.M. Draper), if the Board finds that the qrievors are not properly classified, the board must accept the classification system as it is and interpret and apply the classification system. The Board may either place the qrievors into the appropriate category or if there is no appropriate category, order the employer to reclassify the qrievors. Therefore the issues are as follows: 1. What duties do the qrievors perform; 2. Do the duties conform to the Maintenance Electrician's standard; 3. If they do not fit the class standard of the Maintenance Electrician, is there a better fit within another class standard, such that there are significant duties which the qrievors perform which are assigned to the higher classification which the qrievors seek. If there is not an appropriate class standard, the employer must be required to create a new classification to meet their job functions, in accordance with the decision of the Divisional Court in m and m Crown in Right of Therefore, in order to determine whether the qrievors are properly classified as Maintenance Electricians, the Board must compare the duties which they perform and compare them to the class standard. Page5 The Maintenance Electrician standard states: CLASS DEFINITION: 1. This class covers positions involving skilled manual work at the journeyman tradesmen level, in the installation, maintenance, repair and general up-keep of electrical equipment, wiring and fixtures in or about a Government building, institution, or other establishment, or in the field. According to verbal or written instructions, the employees in these positions are given assignments by a Foreman, Maintenance Foreman, Buildings Superintendent or Maintenance Superintendent or other official responsible for maintenance or other services. They sketch or follow schematic diagrams as necessary and carry the work to completion according to regulations and accepted practices and following recognised procedures and techniques of the electrical trade. These employees may'determine work methods and the work is reviewed for adherence to plans and instructions, satisfactory production and quality of workmanship.. Duties may also entail the supervision and instruction of apprentices, unskilled or semi-skilled workers and patient, resident, trainee or inmate helpers. These employees may also be required to perform related or other tasks but at least 60% of their work time must involve use of the skills and knowledge of the electrician's trade. Employees in these positions wire, inspect, adjust and repair the electrical components of electrically powered or controlled equipment such as: elevators; laundry machinery, refrigeration and air conditioning machines, heating equipment, cooking and baking equipment, paint baking ovens, kilns, hydraulic presses, tradesmens' and machine tools, tailoring and sewing equipment, pumps, milking machines, emergency diesel alter.nators, electrically operated doors and locks. They install and repair such items as: internal telephone and communications systems; radio, T.V., and electronic equipment: lighting circuits; fire or other alarm systems. These employees install, repair or replace items such as (high or low voltage): electric wires and cables; transformers; generators or Page6 alternators; switches, circuit breakers, relays: panel boards: meters; traffic or flasher lights. They may provide electrical service to construction sites, mobile trailers and the like, and they assist and co-operate with other tradesmen and non- trades staff. There was no material dispute on the balance of the evidence. Mr. Barkley provided most of the evidence and it was corroborated in a more general way by Mr. Jones. Mr. Barkley explained that the grievors are part of the maintenance shop at the Rideau Correctional Centre and work with other tradesmen. Each day a gang of inmates are brought to the maintenance shop and are interviewed by the grievors ' supervisor to determine their abilities and particular aptitudes and then are selected to perform various maintenance functions with the appropriate trades. Mr. Barkley determines how many inmates he needs to do his work and recruits them from the gang. Those inmates remain under his supervision for approximately seven hours a day for as long as they are with the maintenance gang, which is usually for periods up to three months, although there may be an occasional person who would stays for a longer time. As 90 percent of the time the inmates do not have above grade 10 education, do not have a background in electrical work, and have never worked before, Mr. Barkley instructs them, by doing the initial demonstration and then by having the inmates repeat and copy the procedures. He supervises the inmates in electrical methods. He explains to them why certain procedures have to be performed and to what standard they must conform. He supervises the quality of their Kork and ensures that the work meets the standards of the electrical codes. Page7 The evidence of Mr. Barkley and as corroborated by Mr.- Jones confirmed that the Position Specification, and Allocation of the Maintenance Electrician substantially reflected the grievers' duties, with the exception that the grievers stated that they did not do "manual work involving the use of the skills.and knowledge of the electrician's trade for at least 60 percent of the work time." Mr. Barkley testified that approximately 80 percent of his time was spent with the inmates of which only 20 percent of his time was "hands on" electrical work, which he defined as the time Spent handling his tools. .The Position and Class Allocation Form states: 2. Purpose of position (why does this position exist?state goals objectives etc.) To provide skilled electrical maintenance and repair services. for a variety of security and industrial electrical systems and related equipment in a minimum/medium'security setting. To perform other related duties. 3. SUMUARY OF DUTIES AND RESPONSIBILITIES (INDICATE PERCENTAGE OF TIME SPENT ON EACH SIGNIFICANT FUNCTION INDICATE SCOPE EQUIPMENT, WORKING CONDITIONS, UNUSUAL FEATURES ETC.) l.Performs skilled electrimce. reoair. # * and installation duties in a nuumum/medium sett inq md in residences bvt 80% -discussing projects and requirements with supervisor to determine needs, priorities, recommend procedures and methods based on own technical knowledge; -checking all aspects of institution's electrical systems on a continuing basis reporting requirements to supervisor, detailing material requirements, etc,; - maintaining the refrigeration plants by performing necessary electrical and mechanical repairs; -maintaining automatic cell door and grill locking systems including various local and master control switch panels repairing or replacing cables, Page8 transformers, switch gear, control gear as necessary; -maintaining the stand-by diesel generating equipment used in emergencies; -repairing and maintaining the Institution's Automatic Telephone System; -replacing faulty equipment or wiring, motors, switches, appliance points, wiring as necessary; -prepares drawings and specifications for wiring and installing new locking and control systems, fire bell and emergency alarm systems, electrical light systems, e.g. installation of fluorescent lights; -rewiring motors etc. after installation; -maintaining T.V. installation system and radio system; -replacing fuses, rewiring electrical equipment, e.g. lamps, motors, etc.: -oiling, greasing, cleaning electric motors, replacing brushes, bearings, coils, etc, -supervising inmate helpers assigned -instructing inmate helpers in electrical methods, use of tools, assigning and checking work, ensuring custody and safety of inmate helpers; -warning inmate helpers in minor misconduct, laying charges in major misconduct; -reporting on conduct and industry of inmate helpers; -maintaining record of names, dates, and hours work by assigned inmates; Note - Incumbent performs manual work involving the use of he skills and knowledge of the electrician's trade for at least 60% of their work time - Incumbent trains and supervises inmates helpers in electrical methods as well as ensuring their custody and safety, (K-l salary note applicable) 2.c 20% -estimating materials required and submitting requirement to supervisor indicating quantity, type, etc. -recommending replacement of equipment and tools; -maintaining a record of work carried out, materials used, etc., forwarding information to supervisor; assisting other maintenance staff, in carrying out of major maintenance repairs, or plant overhaul; -forwarding record to Maintenance Supervisor as required; :. -assisting and relieving other staff in emergency and staff shortqge.situations (e.g. security duties in institutional shops, etc,); -daily inspection and servicing of the sewage and water treatment as assigned; -other related duties as assigned. We find that the Position and Class Allocation accurately sets out the duties of the maintenance electrician. There is no necessity that at least 60 percent of the time be spent on electrical work on a ."hands on" basis. The requirement is to "involve" the skills and knowledge of the electrician. As the grievors spend at least 80 percent of their time with the inmates, during which time they are instructing and supervising the inmates, the grievors are drawing on their skills and knowledge of the electrical trade. Therefore, although the grievors only did "hands on" electrical work for about 20% of the time, they involved their skills and knowledge of the electrical trade for most of 'each day. The next question is whether these duties as reflected in the Position Specification and Class Allocation and by the evidence of the grievers,, conform to the class standard of a.Maintenance Electrician. The class standard of Maintenance Electrician was reviewed with the grievors. The Maintenance Services Category set out a general description of the work to be included within the category. It states: This Category includes: - positions in the general skills and trades areas involving the performance of unskilled, semi-skilled and skilled work Page 10 relating to one or more of the trades and/or involving the operation and servicing of equipment or vehicles. These positions entail such duties as the fabrication, alterations, maintenance, and the operation of buildings, structures, roads, roads, grounds equipment or vehicles. Mr. Barkley admitted that the Maintenance Services Category description was an accurate description of the work that he performed. He also acknowledged that the preamble to the Maintenance Trades classes accurately described his duties with the exception that he disputed that "In all positicns in the maintenance mechanic or trades classes, the incumbents must devote at least 60% of their time to maintenance or skilled trades duties.*' As we have already found that the grievors are performing electrical work and are using their skills and knowledge of the electrical trade for more than 60% of the time, there is no further issue on this factor. The other material dispute in the description of the Class Standard was whether the grievors "carry the work to completion according to regulations and accepted practices in following recognised procedures and techniques of the electrical trade." Mr. Barkley testified that it was the inmates that carry out the work and not the grievors. We find that the grievers recognized their custodial responsibilities and the philosophy of the institution to use the inmates for labour in order that they can be productive by using the inmates to perform "their" (the Board's emphasis) work. The grievors delegated their electrical work to the inmates and supervised the inmates to ensure that the work performed conformed to Ontario Hydro standards. Nevertheless, the grievers bore the Page11 responsibility for the electrical work. It was up to the grievers to decide how many inmates were required each day, and how they would use the inmates. It still remained the grievers electrical work that the inmates were performing and the inmates were assisting the,grievors in the performance of their work. Therefore we find that the grievers' duties met the criteria that the Maintenance Electrician "carries the work to completion according to regulations and accepted practices and following recognised procedures and techniques of the electrical trade." The grievers also did not agree that the equipment which they worked on did not include some of the equipment listed in the standard, such as, elevators, paint baking ovens, tailoring and milking machines, traffic and flasher lights. We find however, that the machinery listed in thee standard are only examples and therefore there is no necessity for the grievers to use or repair or wire all of the equipment listed. The Union's counsel argued that the grievers' custodial duties brought them outside the Class Standard. Because of then nature of the institution, the custodial aspect of the job must be the overriding concern of any employee in the institution, and it must be paramount to those employees such as the grievers who have inmates under their charge. The custodial aspect is recognised in the Preamble to the Maintenance Trades Classes as follows: . . . the incumbents may be provided with patient, resident, trainee or inmate helpers. In all trades or maintenance mechanic positions where such Page 12 helpers are provided, the incumbents are required to supervise, guide and instruct their assigned helpers according their capabilities and temperament and, so far as is possible, to break down the work into tasks their helpers are capable of performing. It is further reflected in the Class Standard by: Duties may also entail the supervision and instruction of apprentices,~ unskilled or semi- skilled workers and patient, resident, trainee or inmate helpers. It is further detailed in the Job Specification by: -instructing inmate helpers in electrical methods, use of tools, assigning and checking work, ensuring custody and safety of inmate helpers... However, these duties do not reduce the time spent on electrical maintenance matters to any degree. As can be seen by Mr. Barkley he combines both his custodial duties and his electrical duties by having the inmates perform much of his work. In that way the inmates are kept busy and he is free to watch the inmates not only for the quality of their work, b,Jt to ensure that they remain in custody. Of the remaining 20 percent of the time spent by the grievors, 10 percent is spent on administrative work which included matters such as writing occurrence reports, accident and injury reports, work evaluation reports and the other 10 percent related to electrical work which usually related to security but which was all work which could not be done in the presence of inmates. The administrative work flows from the custodial responsibilities, but that work is not so great as to take the grievers outside of their Class Standard. Page13 Therefore, when considering the grievers' duties, we find that the grievors' duties fit comfortably in the Maintenance Electrician standard. It can be seen clearly from the Position Specfication and by the grievers' evidence that the grievor's duties are focussed on the maintenance of the institution and its equipment, and the Maintenance Electricians use the inmates to carry out these functions. The Union's counsel urged us to find that the grievers duties fit better into the 'Class Standards of the Industrial Officer series or the Trade Instructors series. The Industrial Officer 3‘Class Standard states: Employees in, positions allocated to this c~lass manage a small to medium or relatively complex production operation such as the Tailor Shop at Rideau Industrial Farm, the Tailor Shop at Millbrook, or the Upholstery Shop at Guelph, or the Tailor Shop at Burwash. OR They assist in management of the larger or more complex production operations such as the Brick and Tile Mill at Mimico, the Machine Shop, or the Tailor Shop at Guelph. AS managers, they are responsible for estimating and procurement of materials, for discussing costs with superiors and for making recommendations on new products to be processed. They make recommendations to superior on staff personnel matters. As assistants to managers, they share the responsibility for quantity and quality of production and for security of inmates. They personally perform work requiring technical skill, experience and knowledge comparable to journeyman standing in a trade. These employees train groups of inmates in good work habits and technical skills, control the quality of production and assign inmates to various tasks in accordance with their capabilities. They prepare daily reports on inmates' industry and conduct. They may take over any position in theproduction routine in order to investigate and correct complaints or to demonstrate proper work procedures. In order for the Union to succeed, it must show that there are significant duties or core duties which fit into the higher classification which they seek. The case of -LEdward and the &&try of w Services G.S.B. #11/-/S (Professor K. Swinton) points out that the mere similarity of certain tasks does not necessarily mean that the grievers become entitled to the higher classification. Page 14 The Board stated at page 10: . . . Job classifications often contain overlapping duties, for it is difficult to design watertight job compartments. This makes the task of classification 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 * . 35/71; Windsor (1975): 7 L.A.C. (2d) 380 (Adams).) and at p. 11 The tasks performed by individuals in different classifications may appear very similar, yet it must be kept in mind that the classifications have been designed for a purpose - whether to reflect different emphases with regard to similar tasks, or to reflect greater discretion or responsibility by those in one of the classifications, or to reflect the higher qualifications demanded of those in the more senior classifications (the aim being to preserve the morale and status concerns of those more highly qualified in a particular field of endeavour). 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 ,:. P Page15 the overall aims of the. classification system. The onus is on the grievor to show that he falls within the higher classification, and where there is extensive 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. Although the grievors may pe'rform some of the core duties of the Industrial Officer, such as sharing responsibility for the security of inmates, performing a technical skill, training inmates in good work habits 'and technical skills, they fail to meet the distinguishing characteristic from which all the Industrial Officers responsibilities flow, is the running a production enterprise. This setting is found in the first paragraph and is emphasised by reference to "quality of production", "control the quality of production" and the possibility that they "may take over any position in the production routine", when setting out the other features of the job in the other paragraphs. The grievers testified that 75% of their work is in renovations and repair work. It cannot be said that these grievers either "run an enterprise" or "produce certain end products using inmate labour." They therefore do not participate in the production of items and therefore do not meet the core duty of any level Industrial Officer. Although the grievors may share similar custodial duties with the Industrial Officers, who fall within the greater category of Correctional Officers, the custodial features of the jobs are an example where duties may overlap duties in another category, but the emphasis in the two class series are different and the persons do not share the same classifiation. Page 16 Alternatively, the Union's counsel argued that the instrucltion of inmates was a key component to their jobs and brought them outside the Maintenance Electrician standard and moved them into the Trade Instruction Class Standard as Trade Instructor 3s. The Trade Instructor Class Series describes the position generally as: Positions allocated to this class series are characteristically designed to aid in the rehabilitation of inmates students in Ontario Reform Institutions through programmed training which includes classroom as well as practical instruction. The objective is to provide a means of self-expression, to arouse and encourage interest in a trade or skill and to motivate the students to continue through their studies after release or discharge and to eventually establish themselves as journeymen in their chosen trade. While the work of the student-in-training may be utilised in a variety of ways such as: the construction, maintenance or repair of buildings; the production of furniture or fittings for use in the institution or the maintenance and repair of machinery; such activities are incidental to the primary function of student training and rehabilitation. Where the provision of services or the production of goods is the significant purpose of the position it should m be allocated to this series although instruction of inmates may be an inherent part of the job. We also do not find they fall within the Trade Instructor Class Series. The focus of the Trade Instructor series is the rehabilitation of student inmates in Ontario Reform Institutions, in order that they can establish themselves as journeymen in their chosen trade. In support of that aim, the Trade Instructor Series requires program training which includes classroom as well as : Page 17 practical instruction. While a classroom may include the field in some circumstances, in this instance, "classroom" is juxtaposed with "practical instruction" which creates a distinction between the practical knowledge gained in the field and the more theoretical knowledge acquired in a more formalised or traditional classroom setting. Furthermore, the Trade Instructor 3 performs the duties of the Trade Instructor 2, but provides training in the more. complex areas, which includes electrical installation.and repair and the Trade Instructor 1 is tied to the duties of the Trade Instructor 2, but provides training in the less complex areas.. The Trade Instructor 2 standard develops the classroom requirement set out in the preamble to the series and requires the "incumbents of positions in this class plan courses of instruction, prepare tests and examinations, grade students and evaluate their progress." They are essential duties for a Trade Instructor 2. In this case, the instruction was of a practical nature in the field and was done by correction and questioning. There were no examinations. There were no .recognized programs which complied with the standards of apprenticeship or programs which were accepted by the government. Although one inmate was able to use the time spent on electrical work while he was an inmate, to meet some of the requirements of an apprenticeship program, there is no "recognized program" in the institution that the grievors taught. Furthermore, as the grievors are free to delegate work and to match the skills of the inmates with the work to be performed, it resulted in an individualizqtion of the tasks to be performed and did not standardise the tasks and standards that are inherent in a "recognised program." Page 18 In summary when considering the duties of the grievors, we find that the grievors are comfortably and properly classified as Maintenance Electricians. Although the grievors may have some of the core duties of the Industrial Officers and some of the duties of a Trade Instructor, the emphasis in those Class Standards are quite different from the class standard of the Maintenance Electrician, to which the grievors comfortably conform. Therefore, as the Union has failed to establish that the grievers perform the key duties of the persons in the higher classification, this grievance is dismissed. Dated at Toronto, this 13th day of November, 1990. B.A. Kirkwood, Vice-Chairperson S. Urbain, Member F. Collict, Member