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HomeMy WebLinkAbout1982-0499.McLean et al.83-10-09IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (John McLean, et al) and The Crown in Right of Ontario (Ministry of Community and Social Services) For the Cirievor: For the Employer: M. Saltman Vice Chairman P. Craven Member G.B. Walker Member 1.X Roland, Counsel Cowling & Henderson R. ltenson Senior Staff Relations Officer Civil Service Commission Grievors Employer Hearings: February 7, 1983 March 8. 1983 -2- The Grievors in this case, John McLean. Lloyd Leigh, Michael Price and Kim Johns, claim that their positions have been improperly classified. The Grievors are employed in the Ministry of Community and Social Services. Three of the Grievors, Messrs. Leigh; Price and Johns, are classified as Occupational Instructor II and claim that they ought to be classified as Industrial Officer I. The fourth Grievor, Mr. McLean, who is the immediate supervisor of the other three Grievors, is presently classified as Occupational Instructor III and claims that he ought to be classified as Industrial Officer IIf. All of the Grievors work in Orillfa Services (also known as the Woodworking Shop or the Work Assistance Programme) of the Huronia Regional Centre, which is a facility for the mentally retarded in Orillia. Orillia Services provides workshop training to both residents of the- Huronia Regional Centre and clients from the local community. Approxi- mately ni~nety percent of the clients; who range from moderately to severely retarded, are residents of the Centre; ten percent are referred from the local community. In essence, the Woodworking Shop is a sheltered workshop which produces products for use in the local comnunity and, to a lesser * In his grievance, Hr. McLean claimed reclassification to Industrial Officer III. However, since the date of the grievance. that classification has been eliminated. Therefore, the Employer con- sented at the hearing to an amendment of the grievance, claiming Industrial Officer II. .i 0 -3- extent, in the Centre itself. The Woodworking Shop is the final step in preparing the client for "normal" employment in the community. Clients remain in the Woodworking Shop from two years to life. The Grievors, Messrs. Price, Leigh and Johns, are instructors in the Woodworking Shop; Mr. McLean is their supervisor. The instructors' responsibilities with respect to clients include (1) providing instruction in the safe and proper use of power and hand tools and equipment; (2) providing vocational instruction so that clients will reach a performance level which will enable them to find employment in the community; and (3) providing supervision in the dining room. Instructors are responsible both for inspecting the finished product for quality control and for observing and evaluating clients on behaviour and performance and for reporting these observa- tions to their Supervisor, Hr.,McLean; to the residential counsellors '(if aberrant behaviour is observed); and to an inter-disciplinary committee convened annually or semi-annually to evaluate the clients. The instructors also have responsibility for assisting their Supervisor in (1) developfng work assignments for the clients and adjusting these assignments to the needs of individual clients; (2) designing and constructing jigs and fixtures for new contracts acquired by the workshop; (3) procuring supplies from the stockroom for use in the workshop; (4) completing work orders; (5) working in the stockroom in the absence of the regular incumbent; and (6) carrying out preventive maintenance and minor repairs on tools and equipment and referring major repairs to the Supervisor. -4- The requirements of safety are particularly stringent since the clients, who are mentally retarded, may also be mentally ill and somewhat dangerous. In fact, there have been instances in which clients have inflicted harm on themselves or on other clients (although. due to vigilant observation. instances of actual harm are rare). However, it is necessary to provide constant supervision and to instruct the clients in the safe use of tools and equipment. In fact, since tools and equipment may be misused to inflict harm, the instructors must exercise discretion in assigning tools and equipment to clients and must ensure that tools and equipment are returned and accounted for at the end of each day. If tools are missing, clients are asked to return the tools. under threat of a body search. In addition to promoting safety, the instructors are respon- sible for the security of the clients. Although security checks are not scheduled, there is constant vigilance to maintain both safety and security. In particular, if a client is absent, the cause of the absence is investigated. Clients who do attend are watched con- stantly to ensure that they do not wander off, which is especially difficult since there are no locks on doors and windows and since the instructors are prohibited from restraining clients. As a security precaution, the instructors supervise the arrival and departure of the clients from the workshop and, if it becomes necessary to remove a client.‘an instructor (or residential counsellor) will escort the client from the workshop. If. in spite of these precautions, a client does wander off, the instructors are responsible for following the -5- client and reporting his whereabouts to the Centre. If,the clients cannot be located, a search of the area is instituted and the instruc- tors may be asked to participate in the search. Occasionally, the police are called in to conduct the search. The Grievor, Mr. McLean, is the immediate Supervisor of the Work Assistance Programme. In general terms, he is responsible for planning, organizing and implementing the training programme to meet the needs of the mentally retarded clients. He does this by (1) assigning clients to instructors (and occasionally by accepting clients himself); (2) advising instructors in the development and adjustment of work assignments to suit the needs of individual clients; (3) ensuring that the assignments and supply of tools and equipment are adequate for the number of clients; (4) coordinating the assignment of work to clients (based~on ability, temperament and progress); (5) implementing quality control procedures and work production schedules and ensuring that these are met; (6) reviewing client evaluations with the instructors and, based on these evaluations, recommending to his Supervisor and to the inter-disciplinary team that a client progress (or regress) on the training programme and recommending modification of the training programme to suit the needs of individual clients. Mr. McLean also counsels residents on behaviour and work habits and may intervene in potentially dangerous situations ,to ensure the safety of both clients and staff members. Moreover, he has particular responsibility for initiating a search for a missing client. If the client is not found, the Centre is alerted and the area of the search broadens. Eventually, a -6- "red alert" is sounded and staff members (including the instructors) are assigned to check the roads and highways. The last time Mr. McLean was personally involved in a red alert was approximately ten years ago. Mr. McLean also assists the Programme Supervisor by (1) analysing and pricing contracts; (2) accepting contracts; (3) ordering materials for contracts; (4) assigning contracts or portions thereof to instructors; (5) demonstrating to the instructors procedures for new contracts by making jigs and fixtures; (6) supervising the completion of contracts and arranging storage for finished products awaiting ship- ment; and (7) shipping the finished product. He also (1) provides evaluations for subordinate staff; (2) recommends pay increases and distributes pay cheques to clients; (3) recommends changes in staffing, materials and equipment; (4) ensures that defective equipment is repaired and/or replaced; (5) orders materials and supplies for stock; (6) participates, along with the instructors, in the taking of annual inventory; and (7) assumes responsibility for the Woodworking Shop in the absence of the Programme Supervisor. The substance of the Grievors' claim is that they performed the same work as the Workshop Instructors (in respect of Messrs. Leigh. Price and Johns) and as the Coordinator of Workshop Services (in respect of Mr. McLean), who are classified as Industrial Officers I and II. respec- tively, at Oak Ridges, which is the maximum security division of the Regional Wen~tal Health Centre at Penetanguishene. The other division is the Regidan Psychiatric Centre which is ~a psychiatric hospital which accepts patients .from the.local area.) Patients at Oak Ridges include (1) patients who have been found,to be.unmanageable in other psychiatric facilities; (2) patients who have become psychiatrically disturbed -7- while serving jail sentences; and (3) patients who have been remanded from the courts for a psychiatric assessment or who have been found not guilty of a serious crime by reason of insanity and who remain at Oak Ridges at pleasure of the Lieutenant- Governor, i.e. indefinitely. Patients are admitted to Oak Ridges on an involuntary basis and may not leave of their own accord (whereas *there is no provision for detaining the clients of Huronia Regional live in the local community) Mental Health Centre (ten percent of whom against their will). Oak Ridges is in every sense a maximum security facility. The building is monitored by remote control cameras. In order to gain entry to the institution, it is necessary to pass through sallyport doors. The first door opens onto a small office which is contained by bars. Inside the office (which is separate from the main institution), a visitor is photographed and.passes through a metal detector (similar to the kind found in airports). Once this procedure is completed, a second door opens and the visitor, who is escorted at all tfmes, gains entry to the main institution. All of the areas within the institution, including the workshop, are secured by locks on the doors and bars on the windows; the exercise yard in surrounded by a 17-foot barbed wire fence. In order to meet the security requirements of the workshop, there must be five staff members on duty at all times, two of whom are responsible only for the security of the institution. Ordinarily, there are three industrial officers assigned to provide instruction and security and two attendants assigned to provide security only. However, if the attendants are unavailable, the total security function is provided by industrial officers who have the same responsibility for security as the attendants in the rest of the institution. Although, according to the job description, an industrial officer spends only fifteen'percent of his time performing security functions, security must be maintained one hundred percent of the time. In fact, security is of prime importance in the job of industrial officer and takes precedence over instruction. All areas of the institution, including washrooms, are patrolled on an ongoing basis, A security check of the workshop area includes ensuring the security of bars, windows, locks, and even brickwork (since bricks may be loosened to remove a bar). Patients are searched twice daily on leaving the workshop area. The intensity of the search varies from a quick frisk to a thorough search of the person involving the use of metal detectors. (If a tool is missing, an extensive body search is instituted. ,If this does not uncover the missing tool, patients are locked in their cells and an extensive search of the building is done.) As part of the security function, industrial officers supervise patient movement to and from the workshop and in the dining room. Since all patients are capable of harming themselves and others, patients are closely supervised while in the workshop. There is also discretion exercised in assigning tools to patients. (Obviously, as in the Huronia ~Regional Centre, tools are not given to patients who have used them to inflict harm.) Tools must be accounted L. for at all times throughout the day: This is done by maintaining a com- plete inventory of tools and by keeping each tool in an assigned place. -9- Tools are also "shadowed", i.e. outlined on the wall so that it is, readily apparent if a tool is missing. Moreover, patients are allowed to remove from storage only those tools which are required for immediate use and to return them to storage when they are not in use. There is constant surveillance to see that tools are returned .following use. Moreover, at the end of each shift, a report verifying that all of the tools have ~been returned must be completed by the Industrial Officer and submitted to the Chief of Security. In addition to ensuring that security is maintained, industrial officers are engaged in providing vocational instruction. Instruction includes (1) explaining the requirements and details of the work to be performed; (2) demonstrating the proper use of tools and equipment, including safety precautions to be followed; (3) assessing the quality and quantity of.the work which is produced; (4) maintaining all tools and equipment in good working order; and (5) maintaining production figures, which are submitted dai?y to the Supervisor of Workshop Services. Although specific work assignments are made, the purpose of the Workshop Programme is not to teach specific woodworking skills but to encourage the development of work-related skills, such as perserverence in a job, regular attendance, and cooperation wfth other employees. Part of the industrial officers' responsibility is to assess the development of these skills and to evaluate behaviour, work habits and perfor- mance. Since the industrial officers have regular contact with the patients, they are in a position to observe and report on changes in attitude or work habits before an incident of aggression which might - 10 - endanger safety or security occurs. If a patient does become aggres- sive, the patient is removed from the workshop. Although the initial decision to remove a patient is made by the industrial officer, the decision to withdraw workshop privileges from the patient must be made in conjunc- tion with the patient's doctor. In addition to the overall security function, the Coordinator of Workshop Services, to whom Mr. McLean seeks to be compared, is responsible for the supervision of instructors and patients by (1). explaining the requirements of the work to be performed, including specifications and types of materials to be used; (2) issuing tools and ensuring that they are accounted for at the end of the day; (3) ensuring that the work performed conforms to specffication; (4) overseeing the instruction given to patfents in handling of tools and use of materials) (5) demonstrating work methods and explaining the proper use of power tools and equipment; (6) overseeing the production of ceramics and- pottery work; and (7) arranging for a steady flow of materials from stock in order to maintain production. The Coordinator alsoassists the Supervisor of Workshop Services by (1) ensuring that there is an adequate supply of materials and supplies and advising the Supervisor of shortages; (2) arranging storage areas for finished products awaiting shipment; (3) preparing shipping bills and bills of lading for shipment of the finished product; (4) establishing fair selling prices for products; (5) setting hourly rates for patients according to evaluation reports; (6) assisting in the taking of annual inventory; and (7) acting in the Supervisor's absence. In addition, ., - 11 - he participates in the treatment programme by (1) reporting to the treatment team on the work habits of patients; (2) preparing reports on patients' progress (or lack of progress) and attending vocational staff meetings on patients; (3) establishing a rapport between patients and staff; (4) assisting in planning treatment for patients and in the appli- cation of these plans; and (5) intervening in potentially dangerous situations to ensure the safety of patients, staff and equipment In this case, the Union claimed that the Grievors were improperly classified. In particular, the Union claimed that the Grievors were doing the same work as -the industrial officer in the workshop at Oak Ridges. In order to prove its claim, the Union must establish either (1) that the Grievors were performing duties which fall within the higher class standards which the Grievors seek or (2) even if they were not, that the Grievors were perfoning the same duties* as those of other employees within the higher classifications sought (Re Rounding et al. 18/75; Re Lynch 43/77; Re Wheeler 166/78; & Montague 110/78; Re McCourt 198/78). * There are cases which indicate that under this second line of inquiry, the employee must prove only that the actual duties performed were "virtually identical" (Fa McCourt 190/7E) or even "substantially similar'< (Fe Beals and Cain 3Om) to the duties of employees in the higher classification. Nevertheless, a recent court decision would indicate that this standard is more stringent, i.e. that there are employees performing the "same" duties in a higher classification (Ontario Public Service Employees Union v. The Queen in Fiqht of Ontario (Ministry of Community and Social Services), December 21, 1982 (Ont. fiv. Ct. (unreported)) For the purposes of this case, it is not necessary to choose among-these tests since the work being performed is so fundamentally different than the work of the classification claimed. - 12 - In this case, the Union relies on the second allegation, i.e. that the Grievors were doing the same work as other employees in higher classifications. In deciding this matter, the Board must accept the Employer's classification system as it finds it (Re Rounding et al. 18/75). The Board's inquiry is limited to determining whether by its actual practfce in classifying other employees, the Employer has altered its written classification standards. If so. and if the Grievors were doing the same work as these other employees. their claim must succeed. In this case, the Union claimed that Messrs. Leigh, Price and Johns were doing the same work as the Industrial Officers I and that Mr. McLean was doing the same work as the Industrial Officer II at Oak Ridges. The Board cannot agree. Although the Grievors and the industrial officers had a.number of duties in common, the admixture of duties and the emphasis in the jobs were significantly different. In particular, although the jobs in the workshops at the Huronia Regional Centre and at Oak Ridges involved responsibility~for both instruction and security, the jobs at Oak Ridges entail more responsi- bility for security than the comparable jobs at the Huronia Regional Centre. .Oak Ridges is a maximum security institution which receives patients from jails. from other psychiatric institutions and on remand from the courts. All of the patients are dangerous to some degree. Retardation, if present, is secondary to the diagnosis of psychiatric illness. Generally, patients who are discharged from Oak Ridges are - 13 - transferred to another institution; rarely does a patient who leaves Oak Ridges return to the community. On the other hand, clients of the Huronia Regional Centre are mentally retarded. In addition, some (although not all) may be dangerous. Although precautions, are taken to ensure the safety and security of clients, these security precautions would appear to be less stringent than at Oak Ridges. For instance, the physical plant is less secure and the instructors have fewer powers of restraint at the Huronia Regional Centre than at Oak Ridges. There are also fewer and less intense security checks. Most importantly, the industrial officers at Oak Ridges have the same responsibility for security as the attendants with whom they are interchangeable and security in the workshop takes precedence over instruction. (In fact, since knowledge of Oak Ridges' security procedures is a requirement for the job of industrial.officer, industrial officers are usual.ly recruited from the attendant staff.) On the other hand, it would appear that at the Huronia Regional Centre security is subordinate to instruction. This does not mean that security is unimportant at the Huronia Regional Centre, but only that due to the nature of the institution and of the clientele (ten percent of whom live outside the institution), the requirements of security are less onerous than at Oak Ridges. Accordingly, since the essence of the jobs at the Huronia Regional Centre are fundamentally and essentially different than the. jobs at Oak Ridges, the Board cannot find that the Grievors were doing the - 14 - same work as the industrial officers at Oak Ridges. Accord- ingly, the grievance must be dismissed. DATED at Toronto this 9th day of October, 1983 M. Saltman Vice Chairman "I dissent" (see attached) P. Craven Member G.B. Walker Member 5:2400 1 HE: GSB 499182 (McLean et al.) DISSENT There is no doubt that the institutional environment and clientele at Huronia differ from those .at Oak Ridge. The question, though, is whether within these different environments, and serving these different clienteles, the jobs performed by Huronia’s Occupational Instructors are “substant i ally similar” (Beals and Cain, GSB 30/79, per Draper I at 14) to those performed by Oak Hi~dge’c Industr i al Officers. It has been urged upon us that the principle difference is in the security aspect of the work. It ic, my view that the evidence shewr the secur i try difference= to be primarily differences cf institutional e n v i i 0 n m e n % r-.:ther ~than of the particular jobs at issue here. At Oak l%idgr Industri.31 Officer-s normally ha.>e 5ecurity officers in thei i= vfor kshops whose -serial responsibility it is to :ouer-see the security (I)+ the inmates;. At Huroni a, wher-e the security risk is admittedly lest,, the Gccupational Instrvrztors are principally responsible for the security of their clients without any sddi ti orgal assi stance. Security procedures at the two institutions differ marl:edl\,, but these differences do rot appear to one to translate into differences in the c~v-e responsibilities of the jnbc in question. draf Offi In my view the employer concedes as much in ting the position specification for Industrial cer's at Oak Ridge, where the security aspect is ,asrigrled only fifteen per cent of Lhe total time allocation. While the specification goes on to note that “incumbents maintain security vigilance 100% of the time. In this position the 15% time allocation should not mislead ur underscore [sic3 the extreme importance of this key duty,” it is clear that Huronia staff mast remain vigilant one hundred per cent of their time as well. Safety and security are important component.5 of both jobs. While Oak Ridge as an institution requires a much higher level of security than Huronia, it achieves it by virtue of the physical structure of the facility and the presence of a large staff whose sole concern is in this area. The shop instructors maintain an active concern with security, but it is by no means the core of their jobs in either setting. Accordingly, I must respectfully dissent from the majority in its finding that "the ee.sence of the jobs a -t the Huronia Regional Centre are fundamentally and essentially different than the jobs at Oak Ridges." I find that the jobs are substantially similar, although they are indeed performed in significantly different institutional settings. I would no more distinguish the Oak Ridge job from the Huronia one on the ground .* I ~. that the Oak: Ridge instr,uctors must know their Institution's security procedures (majority award at 1'3) than I would distinguish the job of a file clerk in the Ministry of Transportation And Communications from that of a file clerk in the Ministry of the Environment on the ground that the former must know the NTC filing system. I would have found that the grievors' jobs are substantially similar to those performed by Industr Officers, and I would have awarded them the classifications they respectively claimed. ial P. Craven Member