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HomeMy WebLinkAbout1979-0257.Askew.82-07-12IX THE XATTER OF Al< ARBITRATION finder TX CROW ENPLOYEES COiLECTIVE BARGAIXING ACT Before THE GRIEVAKCE SETTLEXENT 3OARD Between: Before: .OPSEU (Frank Askew) Grievor - And - The Crown in Right of Ontario (Uinistry of Correctional Services) Employer R.L. Veriizy, Q.C. Vice Chairman R. Russell jiember D. Middleton Member For the Grievor: S.T. Gocdge, Counsel Cameron, Brewin & Scott i0r ths Emlo-er: J. Eenedict, Manager Staff Rela:ions - 2’ : AWARD The Grievor, Frank Askew, alleges that he is improperly classified as a Correctional Officer 3 at the Elgin-?kliddlesex Detention Centre at London, Ontario. He requests re-classification .to Correctional Officer 4, retroactive to April 18th, 1977. Mr. .Askew first worked as a Jail Guard at the Niddlesex County Jail in January of 1962. By 1968 he had become a Correctional Officer 3 and the following year was transferred to the Woodstock Jail. In 1974, he was promoted to the Correctional i:fficer 4 class- ification and remained in that classification until A:>rll 18th, 1977, when the Woodstock Jail ceased operation. He was forthwith transferrred to the new Elgin-Middlesex Detention Centre at London and was classified as a C.O. 3, and his salary was “red circled”. The o;,er.ing of the new Detention Centre at London resulted in the closing of tiree older institutions including the Woodstock Jail. In those three jails there were 15 employees classified as C.O. 4 or Shift Supervisors, and management made the decision at the Elgin-Middlesex Detention Centre to employ 7 of those Shift Supervisors in the new.-facility, all of whom were promoted to C.O. 5 classifications.. The remaining 8 employees including the Grievor were re-classified as C.O. 3’s. There are no C.O. J’s at the Elgin-Middlesex Detention ientre. The Woodstock Jail employed a staff of approximately 3il employees. The new Detention Crntre at London ?mpiov.s a s.taff of some 100 employees. The Elgin-Yiddlesex Crntre has formalized : - 3- programs available for inmates including recreation, exercise, industrial and community work. No such formalized programs were available at the Woodstock Jail. At the London Centre there are 8 Shift Supervisors, 11 C.0; 3’s and 24 C.O. 2’s. The Grievor is responsible for an area within the institution, and has a maximum of 5 C.O. Z’s to whom he gives direction, and approximately 1170 inmates most of whom are young offenders between the ages of 16 and 20 years. The Grievor alleges that the duties he performs at the Elgin-Middlesex Detention Centre are “exactly the same as Woodstock with a few variances”. Much bf the tesimony centered around a comparison of the Grievor’s duties as a C.O. 4 at Woodstock and his present responsibilities as a C.O. 3 at Elgin-Middlesex. Class Standards for Correctional Officer 3 and Correctional Officer 4 were introduced as Exhibits, including the preamble to the Correctional Officer series. The Class Standards of the Correctional Officer 3 ser ies (Exhibit 2b) reads as follows: “CORRECTIONAL OFFICER 3 This class covers positions of Correctional Officers who either: a) as the first level of supervising officer, assist as senior officer in the supervision of subordinate Correctional Officers and the control and direction of inmate activities; OR - b) serv-e as senior offi- ier in charge of a specialized institutional function OT area such as admissions and discharge, towe r are a, institutional laundry, etc. 0R - d) e) f) 9) h) i) - 4 - serve as officer in charge of the main inmate work party involving responsibility for the supervision of subordinate Correctional Officers assigned to assist in the control and direction of inmates engaged in rehabilitative work; OR - act as second in charge of an assigned shift and deputize for the officer in charge under Jail Superintendent 5 or J or in all Industrial Farms except I .F., Burliash orat the A. G. Brown Memorial - Clinic; OR - serve as second in charge of a District Jail (Remand Cent re) ; serve as second in charge to an officer in charge of the female unit of a jail except under a Jail-Superintendent 6 ; OR - serve asp officer in charge of a shift under a Jail Superintendent 1 or 2, and take charge of the institution as required or act as officer in charge of a shift for the femaleunit under a Jail Super- intendent 6 ; OR - plan, develop and supervise the inmate program in an assigned unit or ‘hall’ of an institution and supervise any assigned staff; OR serve as second in charge of a shift or officer in charge of the night shift as Associate Cottage Super- visor at the Vanier Centre for Women. OR - serve as the officer at Vanier Centre for Women in c:lnrge of supervising staff responsible for the admission of \:isitors, searches for contraband, assistance to female staff during disturbances, etc. ST.AFFIXG ST.\ND.-\RDS : BLlS;iC: See r)reamble. ‘. . . CL.4SS LEVEL : About three years of satisfactory experience as a Correctional Officer; or the acceptable educational requirements as stated zr Correctional Officer 2 level with at least one year’s staff supervisory responsibility in a related environment. ” The Class Standards of the Correctional Officer 4 (Exhibit 2c) reads as follows: “CORRECTIONAL OFFICER 4 This class covers positions of Correctional Officers who either: a) serve as officer in charge of a permanent work camp adjacent to the parent institutions under the general direction of a Reformatory Superintendent or a Jail - Superintendent. OR - b) serve as officer in charge of a District Jail (Remand Centre) ; responsible for the planning and administration of the entire program for the unit; OR - cl act as second in charge of a sh Superintendent 5 or 6 z in all at the I.F., Burwash; ift under a Jail Reformatories or - OR - d) serve as second in charge of the female unit of a jail under a Jail Superintendent 6; OR - e) serve as second in charge of a Training Centre or a physically separated forestry camp, :rovi.ding general assistance and relieving the officer in charge during absences : - 6- f) serve as officer in charge of an assigned shift under a Jail Superintendent 5 or 4 or in all Industrial Farms except I.F., Burwaz or at the A. G. Brown Memorial Clinic or at the OntarioTraining Centre, Brampton; OR - St) serve as officer in charge of the female unit in all jails except under a Jail Superintendent 6, involving the supervision of subordinate female Correctional Officers; OR - h) as Assistant to the Jail Superintendent, provide administrative assistance to a Jail Superintendent 1 and 2 and relieve the Jail Superintendent during absences ; OR - i) serve as Security Officer at Adult Male institutions responsible for all security arrangements and invest;- gations ; OR - j) act as Cottage Supervisor with the responsibility for planning and directing programs for adult female inmates in an assigned Cottage and the supervision of subordinate Correctional Officers or as the Administration Supervisor in the Special Eogram for Adult Female Offenders. STAFFING STANDARDS: Bas icy: See preamble. EDUC:I\TION : Satisfactory completion of elementary school education, preferably secondary school education. EXPERIENCE : ,\bout 5 vears’ experience as a Correctional Officer including satisfactory staff super- visory eltperirnce OR diversified experience as a Correctional zficer with a good knowledge of institutional operations and procedures OL correspondingly responsible experience rjhen entry has been at a level higher than the Correctional Officer 1 OR a minimum of 5 ye:!rs’ recent acceptable relntx expori~ence. XOTE recent ospcrience .$I this instance li : 0 1, e J,? c i llC\i :i; ‘iii ::I 11, t!iC 3 >.cnr peri*,<! - 7 prior to appointment, with at least ? of the !‘e:*rs being during the 3 year period prior to appointment’ OR an equivalent combinstion of additional education and/or training and experience related to the pos- ition to be occupied. For example : a B.A. degree with specialization in one of the Social Sciences. PLUS acceptable staff supervisory experience, preferable in a related environment. PERSONAL SUITABILITY : Ability: to meet the required medical and physic<;1 standards as determined by the Department of Correctional Services. Willinrness to work shifts as reauired. For in;titutions for male offenders only - after m”in;-.~*rnt successful completion of the pre- scribed Staff Training course within the Probatisnary period OR within one year of appointment to the ciZss and level, whichever is the longer period.” Position Specification and Class Allocation Forms were also made Exhibits for the Correctional Officer 3 allocation at Elgin-Middlesex and the Toronto West Detention. Centre, as well as the Position Specification for the Correctional Officer 4 position at the now defunct Woodstock Jail. Jack Lockhart, the Deputy Superintendent at the Elgin- Middlesex Detention Centre was the Employer’s sole witness. He gave e\ridence regarding the duties of Shift Supervisors and C.O. 5’s on dut), at separat~e locations in the institution on both the da!, and the afternoon shicts, but not the nis5.t shifts. His evidence was to the effect that although C.O. 3’s were assistants to the Shift Supervisors, :11-v we I‘C not se con2. in commnnd $1” :( given 511 i tt and were pcrnI:te:l to i’.ycrcue ini~pendent .it~il~nwn:. - 8 - only in cases of emergency in the most “basic situations”. Mr. Lockhart described the Shift Supervisor at Elgin-Middlesex as the most junior level of management and the positionof the Grievor as the first level of supervision at the institution and the most senior level within the bargaining unit. Mr. Goudge , on behalf of the Grievor, argued that Class Standards were of little assistance to the Board and were “far too cryptic to be helpful”. He argued that ,the Grievor admittedly per- formed many of the duties described in the Position Specification ‘Form for a C.O. 3 at Middlesex, but in addition performed a sub- stantial number of duties not reflected in that Position Specification Form. He argued that according to the Grievor’s own evidence the percentage allocation of the C.O. 3’s duties were inaccurately described in Exhibit 3. Mr. Goudge argued that the documentation presented at the Hearing supported the re-classification request. In addition, he urged the Board to accept the fact that the core of the Grievor’s duties in Woodstock were substantially the same as those performed by the Grievor at the Elgin-Middlesex complex. On behalf of the Employer, Mr. Benedict urged the Board to review the Class Standards, which although somewhat dated, are the standards against which the Board must measure the Griever’s present duties. He argued that there is a “very substantial difference” in the Griever’s present job as compared with his responsibilities a: Woodstock, and further ;hat the Griever’s pre sent rr5pon5it?ilities ilo not Place !lim :Lt t!le C.0. 4 loVeI. : -9 - In a determination of the issue, the Grievance Settlement Board has established a considerable volume of arbitral precedents. As Arbitrator Katherine Swinton stated in Wheeler and Ministry of Correctional Services, 166/i’s at p. 6: “In classification grievances, the Board looks to two questions: (1) does the griever’s job, measured against the relevant class standards, come within the higher classification which he seeks ; and (2) even if he fails to fit within the class standards , are there employees performing the same duties’ as the grievor who are included in the more senior.classificationl (Re Lynch, 43/77 at 4; Re Rounding, 18/75 at 4) .” The same Arbitrator in Edwards and Noloney and Ministry of Community & Social Services, 11/78 at p. 10 states: “Job classifications often contain overlapping duties, for it is difficult to design watertight job compartments. This makes the task of class- ification 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 Control Board, j5/77 at 12; Windsor Public Utilities Commission (1975), 7 L.A.C. (Zd) 380 (Adams)).” And at page 11 of the same Award: “It is often difficult to draw bright lines between di:‘E?:ent levels (of jobs. The tasks performed 1)) . individuals in different cla,sslflcations may appear very similar, yet it must be kept in mind that the classifications have been designed for a purpose whether to reflect different CmDhases with regard to the similar tasks, or to rer’lcc1 crcnter di5cretiQn 0~1‘ responsiibi 1 i~t\’ lb!’ Thi‘z? Ian oni‘ a,i‘ the cl:ls5 i fi c;I t i oni , or f0 rez:‘!cct the !li~llc:- tqrca!i ~.. i , Ci!i 1 ons Llem:i”iletl 0 !- tbse i- - 10 - in the more senior classification (the aim being to preserve the morale and status concerns of those more highly qualified in a particular field of ende avour) . 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 the overall aims of the classification system. The onus is on the grievor to shoti that he falls within the higher classification, and where there is exten- sive 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.” Other leading Grievance Settlement Board precedent classification Awards can be found in Lunch and the Ministry of Health, 43/77 (Adams); Rounding et al and Minis’try of Community and Social Services, 18/;5 (Beatty); Montague and Ministry of Housing, 110/78 (Swinton) ; McCourt and Ministry of the Attorney General, 198/78 (Saltman); and Irwin and Ministry of Correctional Services, 37/79 (Eberts), to mention but a few. On a review of the evidence in its entirety, this Board is unable to find that the Grievor is presently improperl! classified. The onus is upon the Griever to bring himself within the Class Standards of the higher position. From the Griever’s own testimony he agrees that none of the paragraphs of the Correctional Officer 1 Class Standard applies to him iiit!l the exception of para- graph (c) which reads: “3ct as second in charge 0i a shiic under a Jail Supcrint.endent 5 or 0 01 in 31i Reformatories 01 :, t the I F. , Bur:\.:~.ih ;“- - The evidence of Deputy Superintendent Lockhart, contrar) to the Grievor’s evidence, is that at the Elgin->liddlesex Detention Centre, C.O. S’s are not second in charge of any shift. In our view, the phrase “in charge of” described in paragraph (c) means more than minimal supervisory responsibilities. In our view it means more than assisting a more senior officer, OT being the next highest ranking officer on an assigned shift, O? exercising temporary basic responsibilities in an emergency situation. As the class series preamble states: “All Correctional Officers may be called upon from time to time, to perform higher level duties.....” A comparison of the Grievor’s duties at Woodstock with his present duties at Elgin-Middlesex illustrates certain striking dif- ferences, the most significant of which are as follows: The Grievor has minimal authority over staff at the Elgin-Middlesex Institution -- no authority to assign work schedules, no authority to authorize overtime, no authority to employ part time staff and no authority to discipline staff. In addition,. the Grievor does not participate in the hiring,or promotion of staff even in his own area. and his appraisal of staff is limited to the function of making recommendations. - 12 - It should also be stated that there are similarities in his duties at Woodstock and Elgin-Middlesex. We are of the view that the Griever’s present responsibilities at Elgin-Middlesex are more consistent with the Class Standards for Correctional Officer S and in particular paragraph (a) which reads: “as the first level of supervising officer, assist a senior officer in the supervision of subordinate Correctional Officers and the control and direction of inmate activities ;” The’ Board cannot find that the core of the Grievor’s present responsibilities fit within the C.O. 4 classification. It is understandable that the Grievor considers his job at the Elgin- Middlesex more onerous than at Woodstock due primarily, as his own evidence suggests, to the increased number of inmates at the new institution. Although we have sympathy for the plight of this Grievor, we are unable to find that he is improperly classified at the Elgin- Middlesex Detention Centre. In fairness to the Grievor, this Board was impressed with his testimony which was presented-with honesty and candor. In the result, this Grievance will be dismissed. - 13 - DATED at Brantford, Ontario this 13th day of July, 1982. R.L. Verity, Q.C. Vice Chairman "I dissent" (see .attached) R. Russell Member D. Middleton Member - 14 - c DISSENTING OPINION‘ This is a most difficult case, particularly as the majority report states, "In fairness to the Griever, this Board was impressed with his testimony which was presented with honesty and candor." On the other hand I have difficulty arriving at the same conclusion in so far as the only management witness, Mr. Lockhart is concerned. By and large I felt Mr. Lockhart made his evidence fit the problems thrown up by the grievance. However, in his evidence, bir. Lockhart did describe the position of the Grievor, i.e. Correctional Officer 3 as -... the most senior level within the bargaining unit." In dissenting from the majority decision I do so in part on the grounds that the classification system in use was not properly applied to the Grievor. Moreover, that management's evidence was designed to fit in and uphold the fact that they had eliminated the job at Middlesex-Elgin thathadbeenpreviously held by the Grievor, namely, Correctional Officer 4, which was (and should continue to be) the most senior level within the bargaining unit. In reviewing the evidence one could almost accuse the managemenr: of trickery in the way :iwirhich they demored _ - 15 - .: the Grievor. He (the Grievor) had been a C.O. 4 for a considerable time, receiving C.O. 4 wages, the top of the scale. When he was transferred from Woodstock to London the management continued to pay him his C.O. 4 wages, red circled at the then top of the C.O. 4 rate. The manage- ment did this knowing they were going to eliminate the C.O. 4 classification at the Middlesex-Elgin detention centre. As the evidence shows, the Grievor was at the maximum of the C.O. 4 rate when he was transferred to Uiddlesex-Elgin in 1977 but the grievance was only filed in 1979, when the Grievor's rate of pai had fallen behind that of a C.O. 4 rate. It is generally well known that working people are primarily interested in their rate of pay, not their title. So long as the Grievor was receiving the C.O. 4 rate he was satisfied, it was only when he fell behind that the matter became an issue. It was, to say the least, a sly and ingenious way to ,demote an employee with 15 years seniority. As to the duties performed by the Grievor at Uiddlesex-Elgin as compared to his former job at Woodstock w!lere he was a C.O. 4, here are some of The statements given by rhe Grievor in evidence before Khe 3oard, which all agree was given honestly: = , 3 Q a. Q. a. Q. a. Q. 4. Q. a. Q. A. Q. A. _- - ltj - ikkat are your duties nox compared to ..vher, you were a C.O. 4? "A few variances but othervise the same." How did your functions change in London? "They didn't change at all except I'd inspect an assigned area instead of a whole area." What size area in London? "Woodstock had 35 inmates - the area in London had up to 120 inmates with rhe s,ame size staff." How do you compare your responsibility now with Woodstock .responsibility? "I'd say responsibility is greater now; 120 inmates versus 33 with more programmes than at Woodstock." IIow much time do you spend at London on supervising? "I'd ~say 8Ofb." Where do your reports go in London? "TO the Superintendent directly." Is training at Londonthessrze asat Woodstock? "No it is increased, it's harder, they keep changing the rules all the time, it's hard to keep up." In one sense this is a classical case in that the Board has to determine whose evidence it should believe. I believe the Grievor and when he claims "he does the work of a C.O. -I", I think he is telling it as it is. ::illen the Griever replied to the quesrion ":ihe!l you movrcl rl-on ~voodsr.ock to London, was ::oiir .job t+:isier or narder." : 5 - 17 - He answered,"Harder in the sense there were more inmates, otherwise, it was exactly the same." I believe this is very, very close to the actual situation. Both management and the majority 'Board report relies heavily on the Class Standards, all of which are dated 1970 except C.O. 4 which was revised in 1979. Is it a co-incidence that only C.O. 4 was revised in 1979 whereas C.O. 3 -2 and 1 remained with their old 1970 standards? One can't but help note that after this large institution, Middlesex-Elgin Centre eliminated C.O. 4s the class standards for this eliminated group, and they alone were revised. It is very significant but somewhat ignored, that in cross examination the Grievor made the point quite force- fully that many of his duties (as a C.O. 3) were not listed on the Position Specification and Class Allocation form (exhibit 3). What he was saying near the end of his cross examination was that many of his duties fell under eshibit 4, which is the Position Specifications for a C.O. 4. On balance I find that management has not acted in a forthright manner towards this long zerm employee anU that in fact be is doing substantially the sn~me :vor!i as he did nnen ho was a C.O. 4. before he was transferred and dem0r:i;d LO a C.O. 3. It therefore would be my decision that the grievance should be allowed effective at the Time that the C.O. 4 rate became greater than the red circled C.O. 4 rate of the Grievor and that he be paid the difference of his red circled rate and the higher C.O. 4 rate, to date. July 12, 1982 RR . R. Russell Member