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Home My WebLink About2016-2881.McCafferty et al.22-06-22 DecisiondCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2016-2881; 2016-2883; 2016-2884; 2016-2886; 2016-2887 UNION# 2017-0411-0003; 2017-0411-0005; 2017-0411-0006; 2017-0411-0008; 2017-0411-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McCafferty et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS December 10, 2021 -2- DECISION [1] I have five grievances before me dated February 13, 2017, in which each grievor claims entitlement to the Custodial Responsibility Allowance (“CRA”). The grievors are Mr. William McCafferty, Mr. Kevin VanderVelde, Mr. William Garnett, Mr. Sajjad Rezaei and Mr. Stan Hansen. At the relevant time, Mr. McCafferty was the Maintenance Mechanic foreman and the other grievors occupied the position of Maintenance Mechanic 2 at the Ottawa Carleton Detention Centre. These grievances constitute the fourth of 5 groupings of outstanding CRA grievances. [2] The Union filed particulars setting out the duties and responsibilities of the grievors in this grouping and Union counsel provided written submissions for the purpose of establishing a prima facie case for entitlement to the CRA. This was followed by written submissions from Employer counsel and written reply submissions from Union counsel. It was assumed that the particulars filed by the Union to support its best case accurately reflect the duties and responsibilities of each grievor. The issue for determination is whether a prima facie case has been made out for entitlement to the CRA for each grievor. [3] The CRA provision has been a feature of the Collective Agreement for many years. The conditions for entitlement to the CRA for the grievors can be found in Appendix UN2 of the Central Collective Agreement covering the period from January 1, 2015 to December 31, 2017. It provides that employees in designated Ministries are entitled to the CRA if they fulfill all of the following requirements: (a) they are not professional staff such as teachers, nurses, social workers or psychologists; (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 Correctional Officers, Industrial Officers, Supervisors of Juveniles, Observation and Detention Home Workers, Recreation Officers (Correctional Services), Trade Instructors and Provincial Bailiffs; (c) (i) they are required, for the major portion of their working time, to direct inmates or wards engaged in beneficial labour; or -3- (ii) as group leaders/lead hands, they are directly responsible, for a major portion of their working time, for operations involving the control of a number of inmates 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. [4] As set out in the particulars, the primary duties of the Maintenance Mechanics is to maintain the general condition of the institution, including repairing the security system, electronic and mechanically operated locks and doors, and the electrical, mechanical and digital components of the building. Their duties also include the repair and maintenance of air-handlers, hot water tanks, chillers and other aspects of the institution’s infrastructure. They escort professional contractors inside the facility for the purpose of maintenance. The grievors are frequently required to work in inmate populated areas and they have keys for all the doors in the institution. The Maintenance Mechanics are designated as Peace Officers and undertake Special Custodial Training. [5] In addition to describing their duties as Maintenance Mechanics, the particulars indicate that the grievors are regularly required to backfill for Grounds, Cleaning and Laundry staff, sometimes for months at a time. When performing these backfilling duties, the particulars also indicate that grievors are responsible for supervising inmates who are engaged in beneficial labour and that they engage in this supervisory role for a majority of their working time. [6] I note that the Union relied on OPSEU (Houghton et al.), (1992) GSB No. 595/90 (Devlin) to illustrate that the Employer had paid the CRA to Maintenance Mechanics working at other institutions. This decision addressed a classification issue and was not about whether the Maintenance Mechanics were entitled to the CRA. The fact that certain Maintenance Mechanics were paid the CRA many years ago does not assist these grievors. Their entitlement to the CRA is dependent on their duties and whether those duties satisfy all of the conditions for entitlement. [7] The fact that Maintenance Mechanics have keys for all the doors in the institution and carry out their duties in and around inmate occupied areas does not -4- mean that any responsibility they may have for the custody of inmates entitles them to the CRA. One of the conditions for entitlement in Appendix UN2 is that an employee is required to direct inmates while they are engaged in beneficial labour for a major portion of their working time. There is no indication in the particulars that the grievors played any role as Maintenance Mechanics in directing inmates who were engaged in beneficial labour. I am satisfied therefore that a prima facie case for entitlement to the CRA has not been established for the grievors in so far as their performance of Maintenance Mechanic duties is concerned. [8] The Union also asserts that the grievors are entitled to the CRA when they backfill and perform grounds, cleaning and laundry duties. In his reply submissions, Employer counsel raised some concerns about the Union’s particulars in relation to this work and also questioned whether the backfilling work is captured by the grievances. In my view, a determination that the grievances before me do not cover the backfilling work would constitute an approach that is too restrictive and overly technical. The grievances are from Maintenance Mechanics claiming entitlement to the CRA for the duties they are required to perform, which includes the backfilling work in question. I am satisfied that the particulars in relation to the backfilling work do make out a prima facie case for entitlement to the CRA. In particular, the particulars describe the circumstances of the backfilling work in a way that are sufficient to satisfy the requirement in (c) (i) in Appendix UN2. Accordingly, this aspect of the grievances is referred back to the parties for further consideration. [9] For the foregoing reasons, the five grievances referred to in paragraph 1 of this decision are hereby dismissed only insofar as the grievances claim entitlement to the CRA based on the performance of Maintenance Mechanic duties. I will remain seized of the grievances with respect to the claim that they are entitled to the CRA when performing the backfilling work. Dated at Toronto, Ontario this 22nd day of June, 2022. “Ken Petryshen” ______________________ Ken Petryshen, Arbitrator