HomeMy WebLinkAbout1989-0039.Braund et al.90-06-18 ONTARIO EMPLOYES DE LA COURONNE
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BOARD DES GRIEFS
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39/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN=
OPSEU (Braund et al)
Grievors
- and'-
The Crown in Right of Ontario
(Ministry of CorreCtional Services)
Employer
- and -
BEFORE=, E.K. Slone Vice-Chairperson
I. Thomson Member
G. Milley Member
FOR TRE ~:. P. Cavalluzzo
GRIEVOR=tX'.. Counsel
-~:- Cavalluzzo, Hayes & Lennon
'~' Barristers & Solicitors
FOR TEE ~. Galway
EMPLOYER= Staff Relations Officer
Ministry of Correctional Services
HEARINGS: July 18, 1989
April 6, 1990
This award deals with four classification grievances by
cooks at the Burtch Correctional Centre near Brantford. The
grievors Carlos Braund, Laura NacDonald and Gordon Strain are
classified as Cook 2's, while the grievor Charles Thompson~is a
Cook 3, It is their position that they ought to be reclassified
to Industrial Officer 2 and 3 respectively; alternative]y, they
argue that the Board should order the Employer to find or create
a new classification for them.
The argument in a nutshell is'that the grievors' jobs have
evolved, they say, from merely preparing and serving meals at the
institution, to that of training and supervising inmates in.those
tasks. This change of emphasis, it is alleged, has carried the
jobs out of their assigned classification.
THE FACTS
The evidence presented was not lengthy, and the facts are
not really in dispute. It is our task to decide what
implications flow from those facts.
Burtch is a minimum-security facility located on a working
farm some 12 kilometers from Brantford. An accredited high
3
school is also present at the facility. The inmate population
ranges from about 150 during the week to about 180 on the
weekends.
The kitchen prepares all meals for inmates, and for centre
staff who may number up to 30 for the lunch meal. The kitchen
opens at 5:00 a.m. and closes at 6:30 p.m.
According to the grievor Thompson, back in 1972 when he
joined the staff there were 5 cook 2's and one cook 3 - the same
compliment as now - doing the food preparation and serving for
some 220 inmates. About seven inmates would be assigned to help
in the kitchen, doing vegetable preparation, making toast,
washing dishes or pots, cleaning floors or doing other chores,
Most of the cooks' time was spent doing actual food preparation.
Occasionally, there would be no inmates available at alt to help
in the kitchen.
In 1974, the kitchen was moved to a new building with twice
the space aa before. The chef at the time (a cook 4) decided to
increase the amount of inmate help. Over the years the role and
contribution of inmates has continued to grow to the situation
that pertained at the time of the grievance and now, where some'
20 or more inmates are working in the kitchen at peak times.
Unlike previously, the inmates are not now assigned to a specific
task but are expected to do whatever they are asked to do by the
kitchen staff. For their work in the kitchen, some of the
inmates receive high school credits,
According to Thompson, ~he rehabilitative phi]osophy of the
institution has carried over into the kitchen. He sees it as an
important part of his job to teach skills and good working habits
to inmates, to help prepare them for life on the butside.
Thomson estimated that 90~ of his time was devoted to supervising
inmates. He reports directly to the Food Services Nanager, in
whose absence he as the Cook 3 will be in charge of the kitchen.
it should be noted that .there are no correctional officers
on duty in the kitchen, and the cooks have the responsibility to
warn inmates if they misbehave, and to lay charges in serious
cases involving breaches of internal regulations.
From time to time, there has been a cook 1 at the facility
whose job is restricted to food preparation, but most of the time
the inmates have occupied this role.
All of the grievors receive the Custodial Responsibility
Allowance of $2,000 per year, in addition to their regular pay,
as provided for in Appendix 8 to the Collective Agreement. (More
will be said about this allowance later.)
5
Mr. Thompson conceded that there are certain jobs in the
kitchen that the inmates are not trusted to do. They do not
serve the meat portion in the service line, since they might show
favoritism to friends by dishing out over-generous portions, o'r
conversely they may skimp on portions to those not in favour.
Also, certain equipment in the kitchen is considered too complex
or dangerous to be used by inmates.
The job of the cook 2's, according to Mr. Braund, is also
predominately supervisory. Rather than preparing food for
consumption, his hands on food preparation is generally done for
the purpose of demonstrating techniques to an inmate. He agreed
that it was his responsibility to see that the food was properly
prepared.
.According to Deputy Superintendent Mike O'Byrne, who was
called as a witness by the Employer, he expects inmates to learn
some food handling skills, but probably more importantly to learn
good work habits, take orders cheerfully, and become more
presentable. From his point of view, the job of the kitchen
staff is to get the meals out on time, on budget, and of
acceptable quality. He conceded that the inmate labour is
currently an indispensable part of that job, without which the
meals would not get done. In the absence of inmates, management
personnel would have to pitch in, he suggested.
6
We also heard evidence from Mr. Robert Reed, who is an
Industrial Officer 2 assigned to work in the "Cannery" at Burtch,
The Cannery is-a facility which processes and cans fruit and
vegetables, some of which is grown on the Burtch farm and some of
which is bought from outside suppliers. The product is consumed
both at Burtch and at other institutions with whom the Cannery
enters into contracts for supply. Reed's job as described is
largely supervising inmates and ensuring that the finished
product meets all quality control standards. It is also his job
to set up the production lines, demonstrat® techniques to inmates
.. and maintain and repair eqdipment. The significance of this
evidence,~ it was argued, 'is that Reed's job in the Cannery
resembles the grievors' job in the kitchen, yet he enjoys the
Industrial Officer classification while the grievors do not.
Consequently, we are urged to consider that the cooks could well
fit into the Industrial Officer series.
THE CLASS STANDARDS
In order to examine the grievors' jobs in context, we must
review the assigned class .standards. The cook series is part of
the General Operational Services Category, which provides as
follows:
GENERAL OPERA TIONAL SERVICES CA 7~EGORY
This Category includes:
- positions providing personal, domestic caretaking,
security and custodial services in Ontario Government
buildings, institutions and facilities. These positions
involve such duties as the provision of steward and
messenger services; personal grooming and tailoring
services; cleaning, food preparation and laundry services;
caretaking services in laboratories involving the handling
of equipment and supplies and the care and feeding of
animals; and security services.
- positions involving the performance of manual and semi-
skilled work and of inspectional activities related to
agricultural programmes. These positions entail such duties
as the planting and cultivation of gardens, fruit and
vegetable crops; the maintenance of farms and gardens.
- positions involving the warehousing of materials,
equipment and supplies and including such related clerical
duties as the preparation and checking of invoices, orders,
bills of lading and inventory records.
This Category does not ;nclude:
- positions involving the care and custody of patients,
wards and inmates of psychiatric and correct;ional
~nst,~t, utions or residents of ~4ental Retardation facilities
where the personal care and custodial services are
cont inuing and funct iona I l y unspecia 1 i zed'.
- positions involving the execution of agricultural
programmes enta¥ l~n9 planning, organizing, inspecting,
analyzing and testing duties requiring professional or
technica 1 training.
The clsss standards for the Cook ser~es and the Cook 2 and
Cook 3 poeitions are as follows:
CLASS STANDARD:
PREAMBLE
COOK SERIES
Most of the positions covered by this series occur in an
institutional setting where the kitchen is required to function
over a period as long as from 4 a.m. to 11:30 p.m. or greater; 7
days a week; well in excess of an employee's normal working day.
Thus some of the employees are required to work staggered hours
which are referred~ to as "shifts". The term "shift cook" does
not necessary ly denote the supervisor of a shift, but rather a
cook whose position requires that he begins and ends hfs ~our of
duty at varying times of the day. While a longer day or very
large volume, may require more complicated arrangements, the
folTowing is a typical shift arrangement:-
Eawly shift 6 a.m. to 2.30 p.m. (1/2 hr. lunch)
Day shift 8 a.m. to 5.00 p.m. ( I hr. lunch )
Late shift ....... 10 a.m. to 6.30 p.m. (1/2 hr. lunch)
In some kitchens one or more journeymen cooks open ¢he
kitchen in the morning; prepare breakfast and begin other
cooking tasks, according to instructions and the menu; direct,
the activities of junior cooks, other kitchen help and such
patients or inmates as may be assigned, without the presence of a
supervising cook until the day shift comes on duty. Similarly on
the afternoon shift they remain after the supervising cook or
cooks have left and oversee and assist in the serving of ¢he
'evening mea I and the clean up operat ions thereafter. They may
also begin preparation of the next day's meals. The bulk of the
food service operations occurs during the day shift when the main
mea 1 of the day and either "lunch" or "supper" ara prepared. The
supervising cook, or hfs assistant, is normally present on the
day shift and directs the production of these meals, makes any
emergency changes required in the day's menu, ensures tha~
supplies are requisitioned and delivered'for the following day
and issues instructions for the early and late shifts. Thus the
regular direction of junior cooks, kitchen helpers and such
patients or inmate help as is assigned, fs an inherent
responsibility of a journeyman level, or Cook 2, position.
All employees in positions classified as Cook 2 or higher in
the series may be required to train and instruct junior cooks,
kitchen helpers, patients, inmates or wards in cooking, baking,
meatcutting, kitchen operation, sanitation, food preparation and
serving etc. Except for the substitution of patients or inmates
for some of kitchen help, this responsibility has parallels fn
large volume, non-institutional settings and does not warrant the
Cook 3 allocation which covers the positions of group leaders of
several cooks on a full time basis each day.
In the Department of Reform Institutions provision has been
made whereby employees in positions classified as Cook 2 or
higher in the series may, in addition, be required to appraise
and report on inmates' or wards' adjustment, conduct and industry
for Parole or placement purposes; to take responsibility for the
safety and custody of the inmates or wards assigned to them and
to warn in minor misconduct and lay major misconduct charges as
requ i red.
For the purposes of this series, it is assumed that three
meals are prepared for each person per day, except for meals
served to institutional staff who normally are served only one
meal per day. The number of institutional staff served is pro-
rated to arrive at the number of persons served e.g. 800 patients
or inmates and $00 staff served equals 800 + {1/3 X 300) or 900
persons. Supervisory levels in this series are distinguished,
not by the number of subordinates supervised, but by the size of
the food services operation i.e. the number of persons served per
day. The number of patient or inmate helpers assigned to the
kitchen tends to be dictated by a number of factors often
completely divorced from the actual needs of the food service
operation. Thus the number of patient or inmate helpers or the
number of junior help is no___~ a factor in allocating positions in
this series. An exception is the "group leader" or Cook 3 level,
where more than one subordinate cook, plus other kitchen help as
is required, must be supervised to establish a "group".
Revised June 1. 1970
cook
CLASS DEFINITION:
Employees in positions allocated to this class, as
journeyman cooks, prepare and cook a variety of foods served in a
government inst, itutfon or similar organization. They prepare
complete meals according to approved menus and work sheets and
may on occasion, have to make alterations or substitutions for
items scheduled but not immediately available. They ensure that
food is properly cooked and distributed according to schedule and
that proper cleanliness of the kitchen equipment and premises is
maintained. They may be required ~o ins~ruc~ and supervise
junior cooks and o~her kitchen personnel including such humors'
of inmates or patient helpers as may be assigned.
in some positions, these employees are responaible to the
administrative officer of a small organization or ~nstf~u~fon,
for all ~he food services for up ~o 40 persons, including the
direction of assistants, kitchen helpers, patients or inmates.
In other positions in this class the employees may act as
assistant ~o a supervising cook or dietitian in kitchens serving
10
meals· for 40 to 100 persons.
In all positions in this class, in the absence of the
supervising cook or dietitian, these employees may be in charge
of a shift or part of a shift.
QUA L IFICA TiONS :
I. Grade 8 education, preferably grade 10; good knowledge of
genera I cooking methods and procedures.
2. About three years' acceptable experience with volume
cooking, preferably in a large restaurant or institution, or
its equivalent.
3. Some supervisory ability; ability to prepare and cook meals
according to instructions and menus; willingness to accept
shift work; preferably a good sense of taste; cleanliness;
good health and physical condition.
Revised February 1966
COOK 3
CLASS DEF£NITION:
Under the instruction of a supervising cook or dietitian,
employees in positions allocated to this class supervise the
production of meals in a government institution as group leader
of a sma l I number of subordinate cooks, other kitchen help and
such numbers of patient or inmate helpers as may be assigned.
They usual ly work on a shift basis using prescribed menus and
work sheets and, in the absence of the supervising cook or
dietitian, may be required to make substitutions or re-arrange
menus to cope with temporary shortages, lace deliveries or other
prob Isms.
In. food service operations providing meals for 100 to 300
persons' they assist the supervising cook or dietJtian in charge,
direct and check the work of subordinate cooks, kitchen
assistants and patient or inmate helpers and take charge of the
kitchen during normal absences of their supervisor. In some
positions, in a kitchen unit serving a similar number of persons
and physically remote from the central kitchen, these employees
are cesponsib le for the disc ip 1 ins, c lean I iness and economica 1
meal production of all meals on all shifCs.
In other positions employees in positions in this class are
responsible to an administrative officer for the operation of
food services on all shifts in an institution usually feeding
lI
from about 40 to 100 persons. In these positions they prepare or
adapt menus, requisition supplies, arrange work assignments and
cooking duty schedules and assume over-all responsibility for all
the food services of the institution.
In all positions, as authorized, they prepare supply
requiremen'~s; keep provision records; maintain time schedules;
order repairs and replacements to equipment and they maintain
proper standards of sanitation.
QUA L IFICA TIONS :
1. Grade 8 education, preferably grade 10; good knowledge of
cooking methods and procedures.
2. About five years' acceptable experience as a volume cook,
preferably in an institution.
3. Supervisory ability; ability to estimate food requirements
accurately; ability to re-allocate staff and change menu
instructions as required; ability to maintain tidiness and
sanitary conditions; preferably a good sense of taste;
cleanliness; tact; good health and physical condition.
January 27, 1966
We were also provided with the class standards for the
Industrial O~icer series, which is within the Correctional
Services category. Those standards are as ~ollows:
CORRECT£ONAL SERVICES CA TEGORY
This Category. includes:
- positions involving the care and custody of adul~ and
juvenile wards of Ontario psychiatric hospitals, residents
of Mental Retardation facilities, students of schools for
the blind and deaf, and the recreation and crafts training
of inmates of correctional institutions, schools and
hospitals. These.positions entail such duties as training
patients or residents in personal hygiene, habits and
behaviour; assisting in providing practical nursing care;
instructing in sports, recreation and crafts; and
accompanying patients, residents and juvenile wards on fie ld
~rips to various community events.
- positions involving the custody and control of inmates of
Provincial correctional institutions. The duties of these
positions entail the observation of inmates in both li~ing,
working and recreational areas; the e$cort,ing of inmates
within and between institutions; and relat,ed custodial
dut ies.
- positions involving the provision of support services to
professional social work staff and child care services to
patients, residents and juvenile wards in psychiatric,
mental retardation, rehabilitation and custodial settings.
- positions involving the transport of and emergency
treatment to ambulance patients and the provision of para-
medical assistance, under professional direction, at. the
hospital destination, as required.
This ~ategory does not include:
- positions within institut,ion$ providing such personal
services as hairdressing, laundry and food preparation where
the care, custody of wards, patients, students and inmates
are not of primary import,ante.
- positions entailing the classifying, guiding,
counselling, of inmates.
INDUS TRIAL OFF:!¢ER 2
CLASS DEFINITION:
Employees in posit,ions allocated to this class are engaged
in the supervision of work and instruction of inmates in various
indust, ries at reformatories and industrial farms. %n some
positions, they are in charge of a small industrial operation
such as the Shoe Shop at, Mimico or the Braille Print 8hop at
Mi llbrook. ~ In these positions they are responsible foe
est,fmat, fng and procurement, of materials. Zn ct, her positions,
they assist, fn the management, of a Product,Yon ol~erat, fon not
requiring skil ls of any of t,he designated trades such as the
Woolen Mill at Guelph or the Marker Plant at Millbrook. In many
of ~hese posit,ions, ~hey require specialized processing knowledge
and skills and are responsible to the manager for particular
controls or skilled operations.
They train inmates in the required processes to which they
are assigned, allocate duties and check quality and quantity of
production. They are responsible for t,he servicing, proper use
and adherence to safety precautions in the operation of the
equipment. They have responsibility for production schedules,
work standards, shop maintenance and security arrangements in
their area. They may perform the more complex work as required
or any of the work in order to demonstrate procedure or to
~3
expedite product ion as needed.
QUA L I FICA TIONS :
1. Grade 8 education, preferably Grade 10; varied practical
knowledge of skills related to the work. to be performed.
2. Two years of satisfactory experience as an Industrial
Officer 1 in the appropriate type of work or its equivalent.
3. Ability to deal effectively with inmates; ability to assess
Lstandards of inmates' industry and conduct; ability to
estimate requirements, to establish production methods and
to control production and quality as required.
August 1963
INDUS TRIAL OFFICER 3
CLASS DEFINITION:
Employees in positions allocated Co this class manage a
small to medium or relatively complex production operation .such
as the Tailor Shop at Rideau Industrial Farm, the Tailor Shop a~
Millbrook, or the Upholstery Shop at Guelph, or the Tailor Shop
at 8urwash. ~ They assist in nianagement of the larger or more
complex production operations such as the Brick and Tile Mill at
Mimico, the Machine Shop, or t. he 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 t;o be processed. They
make recommendations to a superior on staff personnel matters.
As assistants to managers, they share the responsibi lity for
quantity and quality of production and for security of inmates.
They personal ly perform work requiring technical skil 1,
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 the production
routine in order to investigate and correct complaints or to
demonstrate proper work procedures.
(~UA L IFICA TIONS :
1. Preferably Grade 10 education; satisfactory completion of
apprenticeship fn the trade required by the duties to be
performed* or an acceptable equivalent combinat,ion of
training and experience.
2. About, five years of accept,able experience at t,he journeyman
level in t,he re lat,ed trade or industry.
3. Supervisory and fnst,ructional abilit,y; ability to sketch or
explain in such a way as to be *underst,ood by unski? led
workmen; abflft,y to assess st,andards of ~nmat, es' indust,ry
and conduct,; ability to deal effectively with inmat,es;
abilit,y to est,imate supplies, t,o establish product,fon
met,hods and to control waste and qualfty; abfli~y to
' recommend and eva luat,e new products for processing.
XWhere the equivalent applies, the person will be required to
successfully complete a Cfvfl Service Trades Test where one
exfsts. ,
Au.qust, 1963
THE LAW
The Union placed a great deal of reliance on the case of
Townsend, GSB #0004/85 (Brent). In that case, the grievor was
employed at the Guelph Correctional Centre as a Greenhouse
Officer, which job was classified as an Agricultural Worker II.
Nuch of his job - as much as 85% - involved the training and
supervising of inmates in planting and gardening procedures. He
was receiving the Custodial Responsibility Allowance, which gave
some recognition to his custodial duties, yet still argued that
his job was wrongly classified. He sought the Industrial Officer
classification. The Board agreed that he was wrongly classified,
and originally ordered the Employer to create an appropriate
classification, i.e. made a "~" type of order. The grievor
was not satisfied with the Employer's complianc® with Ihs Board's
15
order, and requested a second hea~ing. The Board then ordered
that the grievor be placed in the Industrial Officer
classification which he had originally sought.
We were also provided with the Board's ~decision in the case
of Armstron~ GSB #1190/87 (Gorsky).. The grievor in that case was
an Agricultural Worker whose job and situation was, superficially
at least, much like that of Mr. Townsend. The Townsend case was
cited and relied upon by the Union. However, the grievance
failed.
At first blush these two results seem inconsistent.
However, on a closer analysis the results are both totally
justified when one appreciates the principles which those panels
of the Board were bound to apply.
General Principles of Classification
In classification cases generally, there are two ways that
an employee may succeed in obtaining a new classification: the
"standards approach" and the "usage approach". These are two
independent bases for proceeding,. In the standards approach, the
task of the Board is to decide whether the job can reasonably fit
within the assigned standard, as written. In the usage approach,
the Board will order'the Employer to reclassify an employee if it
can be shown that someone in a higher classification is doing
16
essentially the same job as the grievor, These principl.es are
wel] established,
In the early case of Lynch 43/7? (Adams), the following was
stated at p. 5:
"..the question before the Board is simply whether the
classification system in use was properly applied to the position of
the grievor .... in making this determination the Board looks at
two principal considerations - the documented classification
standards against which the gr[evor's position was classified and
secondly the application or purported applications of those
standards to other positions involving identical or nearly identical
work to that which the grlevor performs. This latter
consideration is relevant because the actuaJ classification practices
of the employer may substantially modify the documented
standards relied upon and because the treatment accorded other
employees Is very often the underlying reason for grievances of
this kind."
More recent cases have not altered this test in any respect
material to this grievance, In Bahl et al, 891/85, Vice-
Chairperson Samuels) summarized the law with respect to the usage
approach as follows, at p,8 of the award:
"Thus, It Is suggested that, if the Employer can show that the
employee with whom the grlevor is comparing himself is in fact
wrongly classified, then it is not sufficient for the grievor to
show that his tasks are the same as this other higher classified
employee. And this suggestion is reiterated in Wrlaht 248/81...
But this is the only exception suggested to the general rule that
it is sufficient to conlpare the grievor's Job with the job done by
one other higher rated employee ....
In McL. ean 499/82, the Board said that the ciaim for reclassification
would succeed if 'the Grievors were performing the same duties as
those of other employees within the higher classification sought'
(at p.11). Whlle it might be said that this suggests that the
comparfson must be made with more than one employee, the
authority relied on for this statement is Rounding. Lynch. Wheeler,
Monta.~ue and McCourt. And we have seen that these authorities-
say it is sufficient to make the comparison with one other
employee, subject perhaps to the possibility that the ernpfoyee to
whom the grievor is compared is wrongly classified."
Both Townsend and Armstron9 remained true to these
principles, The following extracts i~rom Townsend demonstrate the
true ratio ol~ that case:
At p.4:
"It is therefore the opinion of the Board that in dealing with a
classffication decision unfettered by Article 5,1.2 of the collective
agreement it must first determine whether the grlevor has proven
on balance that he is 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 Berry since we do not consider that that
decision dealt with how one determines Whether an emptoyee is
improperly classified. If the employee has not satisfied this Board '
that he is Improperly classified, then the matter is at an end. If
the employee has satisfied the Board that he is improperly
classified, then the Board must fashion an appropriate remedy,
which may or may not be to award the grievor the classification
which he sought in hfs grievance."
at p.23:
"As we have a~ready noted, the first question to ask is whether
the grlevor is properly classified, We consider that the proper
way to determine the issue tn this case is to compare the
grlevor's duties and responsibilities to the class definition of
Agricultural Worker 2 which appears in Exhibit 5. Given the basic
definitions of terms used tn' the Agricultural Worker class
standard, the Guelph Correctional Centre would have to be
considered either a "Provincial Government Buitding" or an
"Institutional Farm". The class definition for Agricultural Worker
2, Insofar as it applies to either of those two places of work,
clearly covers only "group leaders of two or more employees
performing agricultural work at a provincial government building
or institutional farm..." The grlevor is not a group leader. There
are no other employees who work as his subordinates, The class
standards clearly indicate that inmates at Instltuttons do not meet
the definition of subordinates."
at p.25:
"We agree with the fact that the grievor Is paid the Custodial
Responsibility Allowance is irrelevant when determining whether
the job is properly classified. The payment of the allowance is
consistent with the Employer's position that the job in question is
not one which Is in the correctional series where custodial
responsibttttles in relation to inmates are recognized. Clearly,
whenever the allowance is paid, the Employer is recognizing that
the employee Is called upon to perform custodial duties. It
assumes that there is a proper classification of the employee's job
before the allowance becomes payable. Zf the job is not properly
classified, the fact that the allowance is paid does not correct that
w rorig.''
at, p.26-7:
"As we perceive the work of the Industrial Officer class ser~s,
those employed therein supervise and instruct inmates tn
beneficial work designed to increase the self-sufficiency of the
institution. They do not teach inmates sophisticated job skills,
but are primarily concerned with the teaching of basic work skills
and work habits. In general, they are charged with running an
enterprise to produce certain end products using the labour of
inmates. In our view this certainly couid describe the greenhouse
operation. The greenhouse officer is charged with the production
of various sorts of seedlings for use by the institution and by
other institutions, using the labour of inmates to achieve this
end."
In Armstronq, the Townsend case was distinguished on the
basis that in that case, unlike Townsend, the job fit within the
assigned classification, In Armstron~ at p.23 the Board wrote:
"The grlevors, therefore, have dual roles: the' production of food
as part of the Self-Sufflctency Program, which goes further than
the mere production of product but includes grading, packaglng,
storing and distribution. The challenge is to meet the production
levels so that product can be distributed, as required, to the
receiving institutions in the Eastern Region. Given the nature of
the institutlo~, the grievors have a significant responsibH[ty with
respect to the training, instruction and supervision of inmates in
the carrying out of a variety of farm operations."
At p.27, t,he Board continued:
"As noted above, the Union relied on the Townsend case as being
binding on us because of the Blake decision of the Chairman. In
the Townsend case, the Board only heard evidence of one of the
grlevors in the case (Mr. Townsend). The grievance alleged that
· Mr. Townsend had been i'improperly classified as an Agricultural
Worker I[ and requested (the remedy) of reclassification as an
;Industrial Officer.
As tn the Townsend case, the grievors have received the Custodia{
Responsibility Allowance, ;In the Townsend case, the grievor
estimated that he spent between 80 and 85~ of his time
supervising inmates and that inmates did virtually everything
which required physicat labour and that he spent his time
Instructing them how to do the work and going from person to
person ensuring that production was online_ In the case before
us, I am satisfied that the grievors spent approximately BOX of
their time supervising inmates in a manner similar to that of the
grievor in the Townsend case."
At p.31 the 8pard continued:
"In the Townsend case, the majority of the Board did not find
that the grievor was performing agrlcultural work. The series
was not appl{cable to him, as written,, because he did not fit
within the language used in the class definitions.
In the case of Hr. Armstrong, he can be seen to fit within the class
At p,32-3 the Board concluded:
"It is important to note that, unlike the case of Mr. Townsend, Mr.
Armstrong does fit within the Agricultural Worker 4 class
definition and the fit is a comfortable one. Such anomaly a~s may
appear to exist between Mr. Armstron9's position and that of Hr.
Townsend is entirely a result of Hr. Townsend's not fitting Into
his original classification of AgMcultural Worker I1, because he did
not supervise anyone withfn the meaning of the class definition."
What the cases clearly require us to do is, first, look at
the class standards in relation to the grievors' jobs. If the
jobs as performed can fairly fit within the general language of
the assigned standards, then that part of the analysis is at an
end. it would not matter that the grievors' jobs might also fit
into ~nother class standard. Only if the assigned
classifications in %hSs case were seen to be wrong, would we have
to look at the Industrial Officer series, to decide if the
appropriate remedy were to assign the grievors to classifications
within thet series, We ere not at that point.
The evidence of Mr. Reed's situation would only be relevant
to a usage approach, which is a totally independent mode of
proceeding. The trouble with the usage approach in this case is
that Mr. Reed does not perform the same duties as the grievors.
The usage approach does not permit us to look at merely analogous
jobs, and then attempt to harmonize the classifications of those
jobs. In a more perfect and rational world the classification of
Nr. Reed in the Cannery might be seen as a benchmark, to be
applied to the kitchen staff doing the same amount of inmate
teaching and supervision. But the case law makes it clear that
we may not elevate the grievors to the higher classification
unless the work being performed is nearly identical, which on any
sensible view Of the matter it is not. Reed runs a quasi-
industrial operation, which supplies products to °utside'
customers as well as to the institution itself. The 9rievors run
a kitchen, feeding the inmates end staff. The fact that both
operations are highly dependent on inmate labour, and that both
operations play a rote within the rehabilitative process, does
not cause the jobs to be equated.
Are the Grievors Properly Classified?
To answer this question, we must look to the Standards.
Stripping them of their non-applicable language, and focussing on
21
their essence, we have the following:
"GENERAL OPERA TIONAL SERVICES CA TEGORY
This Categor.y includes:
- positions providing personal, domestic care~aking,
security and custodial services in .. · institutions and
fac f 1 i t fee. These positions invo 1 ye such du~ fas as the
provision of ... food l~repara~fon ... services;
(This language covers the grievors.)
This Caf;eg°r.y does not include:
- positions involving ~he care and cust;od.y of~ · .. inmat;es
of ... correctional institutions ... where ~he
cu$~odia I services are continuing and funct ions 1'1~'
unspec fa 1 i zed.
(The grievors would not be excluded, ~n our v~ew,
because the custodial services are functionally
specialized, ~n the sense that they relate to the
kitchen operations)
COOK SERZE$
t4os~ o£ the positions covered by this series occur in an
instftuf;fonal setting where the kitchen is required 1rio f~unc~ion
over a period as long as £rom 4 a.m. ~o 11:30 p.m. or grea~er; 7
days a week; we I l in excess ol~ an amp 1oyes's nor~a 1 work lng
da .y . . .
(thte describes the kitchen at I~urtch)
In some kitchens one or more journeymen cooke ... direct the
activities of' junior cooks, other kitchen help and such patients
or inmates as ma.y be assigned... Thus the regular direction ot~
junior cooke, kitchen helpers and such pa~fen~e or inraa~e help as
is assigned, is an inherent responsibility of a journeyman level,
or Cook 2, position.
(this explicitly recogniZes that directing inmate help
is an inherent part of the job. The only question is
whether "junior cooks" and "kitchen helpers" must also
be directed. In our view, the "and" is more properly
read disjunctively than conjunctively, and means "or".
Thus, any one or more of junior cooks, kitchen help and
inmates must be under the Cook 2's charge, but not
necessarily all three,)
A11 employees in positions classified as Cook 2 or higher in
the series may be required to train And ~nstruct junior cooks,
kitchen helpers, patients, inmates or wards fn cooking, baking,
meatcutting, kitchen operation, sanitation, food preparation and
serving etc.
{this certainly applies to the Grievors)
.... The number of patient or inmate helpers assigned to the
kitchen tends to be dictAtedby a number of factors often
completely divorced from the actu&1 needs of the food service
operation. Thus the number of patient or ~nma¢e helpers or the
n~mber of junior help is no~ a factor in allocating pos~tfons in
this series. An exception is ¢he "group leader'" or Cook $ level,
where more than one subordinate cook, plus oSher kitchen help as
f$ required, must be supervised to establish a "group'".
(this seems to recognize ~hat the extent of inmate help
may vary, w~hou~ ~ak~ng ~he employee ou~ o~ h~s
assigned classification, albei~ it anticipates an
argument that a higher classification within the same
series might be sought,)
COOK Z
Employees fn posit~on$ allocated ~.o this c;aes, as
journeyman cooks, prepare and cook a variety of foods served fna
government institution or similar organization. They prepare '
complete meals according to approved menus and work sheets and
may on occasion, have to make alterations or substitutions for
items scheduled but not immediately available. They ensure that
food is properly cooked and distributed according to schedule and
that proper cleanliness of the kitchen equipment and premises fs
maintained. They may be required to instruct and supervise
junior cooks and other kitchen personnel including such numbers
of inmates or patient helpers as may be assigned.~...
(this clearly recognizes the inmate-directing function;
the question might well be asked, though, whether the
Cook 2's could be said to "prepare and cook" meals,
when the inmates provide most of the physical labour.
tn our view, it is the person with the directing mind
that does the preparation and cooking; it is not the
person with the set of hands any more than a labour-
saving machine might be said to cook or prepare a meat.
[t seems to us, on all the evidence, that the Gnievors'
paramount concern is still to get a meal out on time
and of satisfactory quality, using whatever hands are
,. provided. Failure to do this on any given day could be
disastrous. If inmate X learns some useful skills or
inmate Y learns good work habits, so much the better,
but the meal had better be on the table.)
COOK 3
Under ~he instruction of a supervising cook or dietitian,
employees fn positions al loca~ed to this class supervise the
production of meals fna government institution as group leader'
of a small number of subordinate cooks, other kit;chert help and
such numbers of pa~fent or inmat, e helpers as may be assigned.
They usually work on a shift basis using prescribed menus and
work sheets and, fn the absence of t, he supervising cook or
dietitian, may be required to make substit, ut, ions or re-arrange
menus to cope with temporary shortages, late deliveries or or. her
24
· prob less.
(this fits Mr. Thompson perfectly)
In food service operations providing meals for 100 to 300
persons they assist the supervising cook or dieti~an in charge,
direct and check the work of subordinate cooks, kitchen
assistants and patient or inmate helpers and take charge of the
kitchen during norms? absences of their supervisor...
(this also fits Mr. Thompson perfectly)
Thus, it is difficult to see how the assigned class
standards are inappropriate to the jobs being performed by the
grievors. Class standards are of necessity generally worded, and
it is sufficient if the essence of the job is described and
i covered by the standard, In Aird, 1349/87, a panel chaired by
this Vice-Chairperson had occasion to comment as follows, at p.8-
9 of that award:
"On the caseiaw which we have considered, the addition of new
duties may take a job out of its original classification, but only
where those duties are of such a kind or occur tn such a degree
as to amount to a different job ~ltogether. See for example
Baldwin and Lin.q, GSB 539/84 (Palmer) and Fenske. GSB 494/85
(Verity). As these and other cases show~ the propriety of the
classification is a factual issue to be decided on the merits of
each case. Zn the instant case, we cannot find that the job as
performed is something other than the type of job contemplated
by the class standards. The onus is on the grlevor to show that
he is actually performing a job, the essence or core duties of
which do not fit within the ctass standard to' which It has been
assigned by the employer."
[n the instant case, the standards clearly contemplate the
use of inmate labour, It is the degree of reliance on inmate
25
labour that, the grievors claim, has taken the job out of the.
classification. In ligh~ of that argument, we must consider
whether the Custodial Responsibility Allowance ("CRA") has any
impact on the grievance. The CRA is found at Appendix 8 to the
Collective Agreement, and provides materially as follows:
APPENDIX 8
This will confirm that effective January 1, 1984 a Custodial
Responsibi 1 fry A 1 lowance' of two thousand dollars ($2,000.00) per
year is payable tO employees of the Ministry of Correctional
Services and employees working in training schools operated by
the Ministry of Communit~y and Social Services, in addition to the
rate of pay specified for the class of the positions to which
they are assigned, provided they fulfill all of the following
requ iremen ts:
(al they are not professional staff such as teachers, nurses,
socia ? workers or Dsycho. logists;
(b) the positions to which the employees are assigned are not
covered by classes which already take into account
responsibility for the control of inmates or wards, such as
Correct iona I Officers, _Tndustria 1 Officers, Supervisors o'f
Juveniles, Observation and Detention Home Workers,
Recreation Officers (Correctional Services), Trade
Instructors and Provincial Bai liffs;
(c) (il they are required, for the major portion of their
working time, to direct inmates or wards engaged in
beneficial labour;
(ii) es group leaders/lead hands, they are direct ly
responsible, for the major portion of their working
time, for operations involving the control of a number
of inma~es or wards engaged in beneficial labour;
and
(d) they are responsible for the custody of inmates or wards in
'their charge and are required to report on their conduct and
lay charges where breaches of institutional regulations
occur.
On the face of it, the Grievors fit precisely into the
categories provided for by the CRA, We are quite mindful of the
statement in Townsend at p.25 that:
",., the fact that the 9rlev0r is paid the Custodial Responsibility
Allowance is Irrelevant when determining whether the job is
properly classified. The payment of the atfowance ts consistent
with the Employer's position that the job in question is not one
which is in the correctional series where custodial responsibilities
[n relation to inmates are recognized. Clearly, whenever the
allowance is paid, the Employer is recognizing that the employee is
called upon to Derform custodfal duties. It assumes that there fs
a proper classification of the employee's job before the allowance
becomes payable. If the job is not properly classified, the fact
that the allowance is paid does not correct that wrong."
However, where the classification is prima facie
appropriate, except arguably that it does not recognize the full
de~ree of custodial responsibility allocated, it is our view that
the payment of the CRA is relevant. The CRA is part of the
bargain between the parties. It is a supplementary allowance for
supplementary duties pe~formed. It is the grievors' argument
that those duties have changed the character of their jobs. If
that argument were to prevail, then possibly every job involving
custodial duties sufficient to enjoy the CRA could be held to be
wrongty classified. That would render the CRA superfluous. More
appropriately, in our view, the CRA should be seen as a
consensual guid pro quo for employees whose ~obs h~ve been given
an added component which probably is not reflected in their
classification, but where the "bottom line" responsibility of the
job, as described in the standards, has not changed.
In this case, the fundamental responsibility of the grievors
is to get the meals on the table, on time, on budget and in a
palatable form. Inmate help has always been a recognized
component of the Cook 2 and 3 jobs, The additional
responsibility for inmates is precisely the aided component that
the CRA was designed to cover.
Clearly, the real problem is as stated by this Board in both
the Townsend and Armstronq cases, that:
"The real difficulty In this situation may be that there is too
much of a disparity between the non-correctional classifications,
such as agricultural worker, which require virtually the same
responsibilities snd comparable skills as employees in the
[ndustrial Officer class series, and the correctional classifications."
(at p.28-9 in Townsend, echoed in Armstron.~ at p.30)
That is a problem that might well be addressed in the
bargaining process, It is not one that the Grievance Settlement
Board can remedy.
28
In the result, then, the grievances must be dismissed.
Dated at Toronto this 18thday of June 1990.
Eric K. Slone, Vice-Chairperson
I.t, Member
G. Mil~'~, Memb(ir