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HomeMy WebLinkAbout1991-2010.Kirby.92-10-05 eMPLOYES DE LA COL/ROhINE ONTARIO CROWN EMPLOYEES DE GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 2010/91 IN THE MAT?ER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAININ~ ACT Before THE ~RIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kirby) Gr&evor~ - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer EEFORE: A. Barrett Vice-Chairperson M. Lyons Member .. D. Montrose Member FO~ THE C. Dassios UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE J. Ravenscroft EMPLOYER Grievance Officer Ministry of CorrectiOnal Services HE~RIN~ September 9, 10, 1992 D E C I S I © ~ This ~= a companion decision to Semenciw et al, GSB #1448/91, issued on this same date. Althot~qh the two ca,es have ~uch in common .heca,.~e they involve ~rievors titled Clerk Supply in correctional institutions, counsel requested that we hear the Kirby ~rievance following the Semenciw et al Grievances~ rather than with theme because (a) Mr. Kirby is employed at the Hamilton-Wentworth correctional facility and the other ~rievors are all employed at Metro We~t Detention Centre~ and (b) an additional ar~?Iment on the si~e of the stockkeepinG function was advanced on behalf of Mr. Kirby and not the other ~rievors. At the conclusion of the evidence on the size of the stockkeepin~ function~ the Qrievor abandoned that branch of his orievance which would have mandated hi~ advancement from Clerk 5 Supply to Clerk 6 Supply based on the amount of annual stock turnover. Th%~s on the facts and on the argument, Mr. Kirby is in virtually the same situation as the ~rievors in Semenciw et al. He seeks rec!as~ific~tion because he asserts that the extent of his supervisory, custodial and trainin~ responsibilities towards inmates are so that his' core duties are substantially different from tho~e set out in his Clerk Supply class standard, and that the custodial responsibility allowance he receives c~nnot correct his basic improper classification. We have set out the extra duties and responsibilities with inmates alleged by the ~rievors in Semenciw et al and we will not repeat them 2 here because Mr. Kirby's evidence is essentially the same as the other crievors, His stockroom is smaller than the one at Metro West, Detention Centre and it is run by a Clerk 5 Supply (Mr. Kirby) and a Clerk 2 Supply~ with the assistance of one or two inmates, We dismissed the Semenciw et al grievances after a lengthy review of the facts and GSB jurisprudence~ and.we dismiss this Grievance for the same reasons, which we reproduce here: " In this case~ the ~rievdrs clearly fit within their class standards with respect to their stockkeeping and - clerical functions. We think Appendix 8 is relevant in assessing whether or not their duties with respect to inmates is the only feature which might take them out of their class standard. Appendix 8 makes it clear that the custodial duties for which the allowance is paid are in addition to the duties of the positions to which they are assigned, Those duties are additional duties not set out in class standards. To that extent they expand the class standards. While it is true that. the class'standards analyzed in the above-cited cases all make more mention of trainin~ and instruction than the Clerk Supply standard does, we also think that the trainin~ and instruction offered bY the successful ~rievors was much more extensive than that offered by these clerks. The inmate helpers in the stockrooms do primarily manual labour, The clerks can direct the inmates as they wish and are not responsible for teachinQ them job skills, except to the extent that they might wish to employ the, helpers on some job or piece of equipment that requires instruction before deployment. The clerks determine whether or not and how much they wish to teach the inmates, but there is no requirement that they do any more than direct their manual labour and ensure their custody. Any necessary instruction of the inmates relates only to safety standards, and that. is not a comDlicated or time-consumin~ endeavour. We do not think the instructional' aspect in the storeroom necessarily goes beyond directing inmates engaged in beneficial labour. Thus their additional duties with respect to'the inmates are covered under the custodial responsibility · allowance, As the ~rievors are otherwise properly classified, their grievances must be dismissed." Between the Semenciw et a! hearing dates and the Kirby hearing dates, another decision of this Board re!atin~ to the same issue released (.Ta!ea/GreeQ~ GSB #1052/R9 (Low)). In that' case, the Supply Clerks at the Mimico cnrrectional facility advanced the same argument for reclassification as was put forward here~ based on very similar evidence. At page 10 of that decision~ the Board said: "...The ~uestion is not therefore whether or not there exist duties and activities performed by the orievor which are not mentioned in the class standard~ but ratherr is the substance or core of the qrievor's duties so at variance with that set out in the class standard that the standard cannot fairly be said to describe the Grievor's role in the organization. - Applying this criterion, and taking into account the provisions of the custodial allowance at Appendix 8 of the Collective AGreement, I am not able to conclude that the Grievors' activities are not comprehended by the term 'variety of clerical, manual, administrative, repair or purch~sin~ functions that are common to stockkeeping operations...' as expanded by the duties and activities contemplated by the custodial allowance found at Appendix 8. The language of Appendix 8 expressly requires the employee to be one who directs inmates engaged in beneficial labour, is responsible for the control of a number of inmates, and is responsible for the custody of inmates in his charge. These ~rievances rely chiefly on duties carried out in relation to inmates, which duties, bein~ covered by A~pendix 8, I do not find support the claim for reclassification." The finding in Jalea/Green is in accord with our findino in $emenciw et al~ and in this case, D..~ted at .Toronto thi~ 16th day of October, 1992, A. Barrett, Vice-Chairperson "I Dissent" (dissent attached) M, Lyons, Member D. Montrose~ Member DISSENT GSB 2010/91 KIRBY OPSEU & MINISTRY OF CORRECTIONAL SERVICES I have read the decision of the majority and with respect, I must dissent. I base my dissent on the following facts: 1) The General Operation Services Category (of which the Clerk Supply Series is a part) "does not include positions involving the ... custody of...inmates of...correctional institutions where the...custodial services are continuing and f0nctionally unspecialized." 2) The preamble of the Clerk Supply Series recognizes that "inmates are often employed in stockkeeping operations"; however, nothing in the Clerk Supply Series refers to or describes duties entailing supervision and instruction/ training of inmates. This is different, for example, from the Laundry Worker Series (Ex. 11} (among others) which, in my opinion, does anticipate supervising and instructing/ training inmates. The grievor is entitled to receive the Custodial Responsibility Allowance (CRA) when "(c)(i) they are required, for the major portion of their working time, to direct inmates...engaged in beneficial However, directing inmates is different from providing supervision (including asses~nent of work performed and reports to administration) and instruction/training. So, it seems to me that the grievor is entitled to receive the CRA when inmates are "employed in stockkeeping operations"; but surely receiving the CRA does not require the grievor to perfor~ functions that are not anticipated by his class standard. For this reason, I would have awarded a Berry order in this case. Dated at Toronto this 5th day of October 1992. M~hael Lyons, M~mber :