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HomeMy WebLinkAbout1990-1714.Cannon.91-06-05 ONTARIO EMPLOYES DE LA COURONNE GROWN EMPl. 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2fO0, TORONTO, ONTARIO. MSG tZ8 TELEPHONE/T~L~PHONE: (4 '16) 326- '13~8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG fZ8 FAC$IMJLE/TEL~_COP]E .. (416) 326-1396 1714/90 ~N THE H~TTER OF AN ~RB'rTRATION Unde~ THE CROWN EMPLOYEEB COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU('Cannon) ~rievor The Crown in Right of Ontario (Ministry of Correctional SerivCesi Employer BEFORE: J. Samuels Vice-Chairperson M. Lyons Member F. Collict Member FOR THE L. Rothstein GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solictors FOR THE C. Foster EMPLOYER Grievance Officer Ministry of Correctional Services HEARING Febrl/ary 11, 1991 The grievor is the Coordinator of the Temporary Absence Program (TAP), and the Institutional Work Program (IWP) at the Metro East Detention Centre. She is classified as a Rehabilitation Officer 2. She claims that she is entitled to the Custodial: Responsibility Allowance, pursuant to Article 5.9 and Appendix 8 of the collective agreement. Article 5.9 simply incorporates Appendix 8 into the main body of the collective agreement. The Appendix reads: Re: Appendix 8 (See also Article $ -- Pay Administration, Section 5.9 -- Custodial Responsibility Allowance) This will confirm that effective January I, 1984 a Custodial Responsibility Allowance 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 Community and Social Services. in addition to the rate of pay specified for the clas:~ of the positions to which they are assigned, provided they fulfill all of the tbilowing requirements: (a) they are not professional staff such as teacher~, nurses, · so¢~at workers or psychologists: (b) the positions to which the employees are assigned are not covered by classes which already take into accollnt' responsibility for the control or' inmates or wards, such as Correctional Officers. Industrial Officers.' Supervisors of Juveniles, Observation and Detention Home 'Workers, Recreation Officers ('Correctional Services}, Trade Instructors and Provincial Bailiffs: (c) 6) they are required, for the major portion or their working time. to direct inmates or wards engaged in beneficial labour; or (ii) as group leaders/lead hands, they are directly responsible, for the major portion o£ their working time, I'or operations involving the control of a number of inmates or wards engaged in beneficial labour; and (dj they are responsible ['or Ihe cuslody of inmates or wards in their charge and are required to report on their conduct and lay charges where breaches of institutional regulations occur. The Custodial Responsibility Allowance shall be paid according to the base rate o~ pay for the class involved. weekly rated classes -- $38.401week -- hourly rated classes ~ -- 40 hour week -- 96e/hour -- 36¼ hour week -- $1.06/hour 3 The issue in this case is whether the grievor satisfies the condition of paragraph c(i) of the Appendix' is she required, for the major portion of her working time, to direct inmates engaged in beneficial labour? The grievor is a trained and experienced correctional officer, who has been employed by the Ministry since 1979. She has occupied a variety of positions, including a number classified as a Correctional Officer 2 and Correctional Officer 3. In her current position, she is the person at the institution who handles the paperwork necessary when an inmate will leave the facility on the Temporary Absence Program (a program designed to help the inmate reintegrate back into the outside community--invOlving temporary leave for work, school, compassionate reasons, or in the period immediately preceding the inmate's release date), and she does some of the escorting of inmates on their way out of the institution. As well, she runs the Institutional Work Program. Her claim for the Custodial Responsibility Allowance is based primarily on her work involved with the latter · Program, together with the escort functions she performs under the TAP. There are many jobs in the institution which are filled by inmates~ in the laundry, the kitchen, on the grounds. This is the Institutional Work Program. Generally there are 36 inmates who are working, and each day some will leave the Program and will be 'replaced by new candidates. Much of the grievor's day is taken up with selecting the inmates who are new to the IWP (this requires a review of the documentary record concerning the potential candidates, and interviewing them); escorting the selected inmates to the medical office and watching over them while they are examined; escorting them to Unit 2B, which will be their living quarters while they are on the IWP; escorting inmates to their work stations; checking the work stations frequently to ensure that the inmates are doing their assigned jobs; counselling inmates about the roles goveming their conduct while on the IWP, and the consequences of a failure to 4 comply with these rules; escorting the inmates who are not working out to other work stations or back to a Unit. These d'aties take up the vast majority of her working time during a shift. She does have the authority to issue a misconduct to an inmate on the IWP, but this occurs very rarely. The grievor testified that her TAP duties take 20% of her time, and the balance of her time is spent on the rWP, and that 75% of her time is spent dealing directly with the inmates under both programs. These figures were not seriously contradicted and they seem reasonable to us, in light of the description of the grievor's daffy duties. We have no hesitation in concluding that, for the majority of her working time, she is required to direct inmates engaged in beneficial labour. She "directs" the inmates by taking primary responsibility for them while she is escorting them about the institution, and by taking primary responsibility for counselling them concerning their behavior while at the work stations. When she is escorting inmates, often she will be in hallways or in the medical office where there are correctional officers, but she is the one who is taking primary responsibility for' the control of the inmates under escort. With respect to counselling the inmates, it is important to distinguish between the instructions the inmates receive about the particular jobs to which they are assigned, and the instructions they receive concerning their general behavior. For example, in the kitchen, a non- inmate member of the kitchen staff will tell the inmates what to peel, wash, etc. But it is the grievor who will counsel the inmates how to behave generally...what is expected in the way of cooperation with the other members of the kitchen staff, and so on. And it is the grievor who has to deal with any behavioral problems. And the inmates she directs are. "engaged in beneficial labour". Though she herself does not operate the kitchen, the laundry, or the gardening' service, her contact with the inmates on the IWP is part and parcel of the labour itself. The "engagement" in beneficial Iabour involves the .whole IWP process--selection, escort, monitoring, counselling, and performing the work itself. The grievor% contact' with the inmates is not simply part of the general care and custody undertaken by correctional officers. Her contact with the inmates is for the purpose of having them perform beneficial 1about. The grievance is allowed.. The grievor first raised her' complaint in June 1990, and she should receive the Custodial Responsibility Allowance as of June 1, 1990, together with interest at 10% compounded annually on any sum from the date on which it ought to have been paid to the date on which it is paid. 6 ~ We will reserve our jurisdiction to deal with any matter arising out of this order. Done at London, Ontario, this 5th day of aune ,1991. J. W. Samuels, Vice-Chairperson M. LYon.~:Member i' "I Dissent" (dissent attached) iF. Collict, Member DISSENT RI~: G.S.B. #1714/90 (CANNON) This Member is not in agreement with this award. As stated at page 3 of the award, "The issue in this case Is whether the grievor satisfies the condition af paragraph (c)(I) of the Appendix - Is she required, for the major portion of her warking time, to direct Inmates engaged in beneficial labour?" This Member agrees that this is the issue in this case. However, there is a very great difference between dlrectin,q inmates, as opposed to _dlrectin,q Inmates en.cla.cled In beneficial labour. The concept of the Custodial Responsibility Allowance (C.R.A.) as set out in Appendix 8 of the Agreement is that the individual whose jab classification does not incorporate monetary campensation for certain activities associated with inmates, shall receive a C.R,A, under specific circumstances; and this is normally paid to the stores clerk, supervisor of the laundry, maintenance staff, the cook in the kitchen (if the work Is. not contracted out as in the subject case) etc., who dtrect inmates en.aa.cled in beneficial labaur as they work In the stores, laundry, an maintenance work, on the grounds, or in the kitchen. In returning to the issue then, does Ms Cannon direct the inmates in this case while they are enaa.aed in beneficial labour? At page 3 of the award It Is stated that Ms Cannon, - selects inmates (reviews the documentary record concerning potential candidates and interviews them), - escorts them to the medical office, 2 - watches over them while they are being examined, - escorts them ta Unit 2B, - checks the work stations frequently to ensure the inmates are doing their assigned jobs, - counselling inmates about the rules governing their conduct while on IWP and related consequences, - escorting inmates who are not worktncj; out, to other work stations or back to a Unit. As stated at page 4 of the award, "These duties take up the vast majority of her working time during a shift". But to quali~ for C,R.A. as set out In Appendix 8 of the Collective Agreement, "..,(employees),..are required for the major portion of their working time, to' direct inmates or wards en~¢.~led In beneficial labour'. (underscoring added) And escorting, Interviewing, etc. as described in the award at page 3 do not meet the clear requirements to direct inmates when they are working (engaged in beneficial labour). In effect, to merely have custody of, or talking to (counselling) inmates does not entitle an employee to the C.R.A. The award concludes at page 4 that Ms Cannon, "..."directs" the inmates by taking primary responsibility for them while she is escorting them about the institution, and by taking primary responsibility for counselling them concerning their behavlour while at the work stations", 3 This Member would concede that there may be some direction to the inmates in the sense of counselling; and In any event, this narmally is a shared respansibillty with the individuals already receiving a C,R,A, for the direction of these same Inmates whIfe they are working. But, this Is not "directing" these inmates when they are engaged in beneficial labourt in view of the clear language of Appendix 8(c)(1) of the Agreement, this Member would have dismissed this grievance, ~ F,T, COLL DATE