HomeMy WebLinkAbout1985-0017.Ennis and Schuler.90-04-27.
IN TEE NATTER OP AN ARBITRATION
Under
THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLENENT BOARD.
BETWEEN:
BEFORE:
FGR THE
GRIEVOR:
FOR THE
EMPLOYER:
REARING: November 20, 1989
OPSEU (Ennis, Schuler)
Grievors
- and -
The Crown in Right of Ontario
(Ministry of Correctional Services)
- and -
Employer
B.A. Kirkwood
S. Urbain
F. Collict
Vice-Chairperson
Member
Member
C. Dassios
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors.
.J. Benedict
Manager
Staff Relations and
Ministry of Correct
Compensation
:ional Services
Page2
DECISION
The grievor, Mr. Ennis was employed at the Guelph
Correctional Centre as a Maintenance Electrician Foreman from
1981 to 1987. He then became a Co-ordinator of Maintenance
Services, a non-bargaining position. His grievance relates
to the period of time during which he was a Maintenance
Electrician Foreman.
The grievor, Mr. Schuler took over Mr. Ennis'
position when he vacated it, and holds the position to date.
Each grievor claims that he was improperly
classified and seeks classification as an Industrial Officer
3, and compensation for that position, from twenty days prior
to the filing of the grievances.
The Union's counsel submitted that there are three
areas of work which took the grievers' jobs outside of their
standard:
1) the nature of the core ~electrical work is
oriented to new installations and not general
maintenance, which he submitted is not part of
the job standard;
2) the grievers do not spend at least 60% of
their time doing electrical work and
supervising electricians as required in the
job standard; and
3) the grievers spend considerable time being
correctional officers to inmates which is not
accounted for in the classification.
Page 3
The Union's counsel submitted that the Industrial
Officer 3 position "best fit"' the grievers' duties and
responsibilities.
In response, the Ministry's counsel submitted that
the job standard includes installations as well as
maintenance.. Furthermore, he submitted that the amount of
work which the grievors devoted to electrical work including
maintenance and installation was equivalent to 60% of the
time worked.
The Ministry's counsel submitted that the job
standard included the supervision of inmates assigned to the
Maintenance Electrical Foremen. He submitted that custodial
duties are set out as prerequisites for the Custodial
Responsibility Allowance which the grievors receive.
Although the complete title of the grievors
classification is Maintenance Electrical Foreman/Forewoman,
there are no women involved, and for simplification we will
refer to the position as Maintenance Electrical Foreman.
As stated in the decision of (-
2h.e Crown In JUght of the Province . I G.S.B. 16/75 (D.M.
Beatty), the onus is upon the union to prove that the
employer is not conforming to the classification system which
has been established or has been agreed to. Therefore the
union must establish on a balance of probabilities that the
grievers' jobs do not conform to their job classification.
In order for the grievors to obtain a higher
classification, the Union must persuade the Board that
significant job duties are beyond those assigned to the
present classification and constitute significant duties of
Page 4
the higher classification that the grievers seek.(m
trv Of
Education) G'.S.B. 535/04 (Roberts.), OPSEU and 'I&
. Communlcatlons G.S.B. 26/80 (Roberts), QPSEU ID.Frem
. 5 * * 2h.e Crown In Rlcrht of onlacio (Uuustrv of R-nzru.d G.S.B.
323/81 (R.L. Verity)).
As found in many of the cases of the Grievance
Settlement Board, and as referred to in QESEU CM. Parker)
I , , . The Crown In Rlaht of On+m+rv of EnvW
G.S.B. 107/83 (P.M. Draper), if the Board finds that the
grievors are not properly classified, the board must accept
the classification system as it is and interpret and apply
the classification system. The Board may either place the
grievors into the appropriate category or if there is no
appropriate category, order the employer to reclassify the
grievers.
In order to determine whether the grievors are
properly classified as Maintenance Electrical Foreman, the
Board must compare the duties which the grievors perform and
compare them to the class standard.
The class standard for the position of Maintenance
Electrician is as follows:
Positions allocated to this class involve the
supervision of at least two tradesmen, employed at
the journeyman level, in the skilled installation
or maintenance work related to the general upkeep
of electrical wiring, equipment, fixtures, etc. at
a Government building, institution or other
establishment or in the field. The employee, in
positions in this class, is given general
Page5
assignments by his supervisor and is required to
supervise the work to completion according to accepted methods and regulations in the electrical
trade. He determines work methods and makes periodic inspections of work in progress and of
premises in general and recommends electrical
repairs of replacements where necessary. The work
is subject to review for satisfactory quality and
compliance with directions, regulations, plans and
specifications. They may also perform other tasks
of a related nature but at least 60% of their time
must be devoted to electrical work or supervision
of electricians. In addition to journeymen tradesmen, they may supervise unskilled or semi-
skilled employees and patient, resident, trainee or
inmate helpers.
Under direction, the employee in positions in this class is required to plan, lay out, supervise
and inspect all electrical work performed by journeymen electrical workers, other workers,
patient, resident, trainee or inmate help at the
establishment concerned. He estimates the quantity
and quality of materials required; the time
required for the tasks and requisition or orders
material. He may also be required to inspect and
report on the work done by outside electrical
contractors and assists and co-operates with other foremen, tradesmen and non-trades staff.
The Union claimed that the grievors spent more time
on new installations than on maintenance, which caused them
to be improperly classified.
Mr. Ennis testified about the work which he
performed as a Maintenance Electrical Foreman. Mr. Schuler
also testified that the nature of his work was similar to
that of Mr. Ennis.
Mr. Ennis testified that his work involved new
installations including the following: the installation of.
telephone lines between 1981 to 1987, the installation of
lighting for 200 new planters in 1982, the creation of a new
Page 6
stereo system throughout the cells, the installation of a new
electrical panel in 1983, the installation of new circuits
for six looms and a spinner, ma,king interlocking switches
from 1982 to 1984, and the wiring of televisions in 1984.
Mr. Ennis also prepared a list of new installations which he
had to do for the period from September 17, 1984 to July
1985. Be testified that the Maintenance Electrical Foreman
also installed back up lighting in the B dormitory, new
panels, circuitry and wiring in the other dormitories in
1989, which is still ongoing in C dormitory.
We accept Mr. Ennis' testimony that approximately
60% of the electrical work required new installations as
opposed to approximately 40% of the work for maintenance.
The issue is whether the job classification
excludes or sets any parameters to the amount of time that is
spent on installation.
The key operative sentence in the job standard of
the Maintenance Electrical Foreman is the first sentence
which states:
Positions allocated to this class involve the
supervision of at least two skilled tradesmen,
employed at the journeyman level, in the skilled
installation or maintenance work related to the
general upkeep of electrical wiring, equipment,
fixtures, etc., at a Government building,
institution or other establishment or in the field.
As each grievor supervised two electricians at the
journeyman level, they met the first criteria. However, the
work which the Maintenance Electrical Foreman performs may
fall into the category of either new installations or
maintenance as the job standard uses the conjunctive word
"or" to link "installation" and "maintenance". No other
wording is found in the job standard which suggests that the
amount of installation work performed is to be limited. On
the contrary, the classification states "These employees may
themselves perform any of the duties of a Maintenance
Electrician" which covers work of a maintenance nature, which
is followed by "They must also perform other tasks of a
related nature, but at least 60% of their time ~must be
devoted to electrical work or the supervision of
electricians." The term "electrical work" is a general term,
and therefore includes all electrical work, which includes
new installations and the maintenance of existing wiring.
The only limitation on installations and
maintenance is that the work must relate to the "general
upkeep of electrical wiring, equipment, fixtures, etc. at a
Government building, institution..."
If the Board looks to the nature of the work
performed, all the work relates to maintaining the' standard
of the buildings and the equipment found within the
buildings. Installation of new equipment and extensive new
wiring, does not detract from the broad term of "general
upkeep" used in the description of the job standard.
Therefore, the Board finds that new installations
are included in the job standard for a Maintenance Electrical
Foreman and that the standard does not limit the amount of
new installations involved.
The second issue raised by the Union is whether the
grievors meet the criteria in the job standard that "at least
60% of their time must be devoted to electrical work or the
supervision of electricians."
.
Page 8
Mr. Ennis testified that the Job Specification was
a reasonably accurate reflection-of his job duties, although
there were some errors. The evidence supported Mr. Ennis'
position, and showed that there were only a few duties within
the Job Specification which the Maintenance Electrical
foreman did not do. The Job Specification states:
2. Purpose of position (why does this position exist?)
To ensure the correct installation, repair,
replacement and maintenance of electrical equipment
and facilities of the Guelph Correctional Centre;
to supervise assigned inmate helpers and provide
group leadership to two electricians and perform
other related duties.
3. Duties and related tasks (what is employee required to do, how and why? Indicate percentage of time spent on each duty)
1. 75% Ensures the correct installation, repair,
replacement and maintenance of -1 eouw
-ensuring the completion of required projects and
jobs according to accepted standards of the electrical trade and ministry and institutional
standards;
-receiving plans or drawing plans for new
installations;
-wiring and installing electrical machinery;
-replacing overhead lines and installing
underground cables;
-partial rewiring of buildings at the complex;
-installing and extending intercommunciation and
radio systems;
-maintaining electrical equipment (approx.. .600
motors),overhead wiring and poles, internal
wirinq,outside and inside lighting, appliances and
switchgear;
-replacing elements in kitchen stove, servicing
electrical controls of refrigeration motors and
heating equipment;
-renovating faulty switches;
-overhauling electric ovens, magnetic relays;
-performing minor maintenance on film projectors,
television sets, etc.,
-instructing inmate helpers (5) in electrical work
projects;
Page9
-assigning and checking work,
safety; ensuring custody, preparing conduct and industry reports as
necessary.
2. 15% PeLeadershiD +o twQ
- assigning and checking work;
-advising on problems related to electrical.work;
-providing information to supervisor for appraisals.
3. 10% Performselated dutim.
-estimating quantity and quality of materials
required, ensuring materials are ordered and maintaining adequate stocks, e.g. fuses, switches,
wire;
-inspecting and reporting on work outside
contractors;
-assisting with other maintenance when required;
-performing duties of supervisor during absences;
-serving as Energy Conversation Committee.
-other duties as assigned
Note: Incumbent is responsible for correctional
supervision, training and instruction of assigned
inmates for the major portion of his working time.
Salary note Kl applies.
Mr. Ennis confirmed that he was responsible for the
quality of all electrical work done by the staff, and by the
inmates. He testified that there were three inmates, on
average, working with the electricians. At times there would
be no inmates and at other times, as many as five inmates
working with the electricians. Usually he and each
electrician would have an inmate assisting them. He
testified that he spent approximately ten to twenty percent
of his time supervising the two electricians and
approximately 25% of the time doing electrical work.
The Ministry called no evidence. As the evidence of
Mr. Ennis was not contrad.icted, we accept his evidence that
he spent 45% of the time, doing electrical work and
supervising the electricians. However, we do not find that
the balance of the duties he had which involved the inmates
did not involve electrical work.
Page 10
The Board does not find that the training and
supervision Of the inmates in this department is supervising
electricians as there have only been about four or five
inmates that have worked with the electricians since 1981
that have been licensed or who were at an apprenticeship
level. The use of the word "electrician" connotes that the
person has a level of skill to perform electrical work.
Mr. Ennis testified that he was in contact with the
inmates as much as 70% of the time and that'he spent 90% of
his time training and supervising them. 'As most of the
inmates are not very skilled when they come to the shop, Mr.
Ennis testified that as a Maintenance Electrical Foremen, he.
trained them in the safety regulations regarding electricity,
and he taught them how to use power tools, tube cutters,
tools used in construction. Be also taught them measuring,
drilling, anchoring, pulling wires and installing conduits,
and lighting fixtures: The inmates were trained and those
who were capable were then used for these tasks under the
direction of the Maintenance Electrical Foreman or the other
electricians. Other inmates of lesser capabilities were
assigned to assisting the electricians by doing tasks such as
carrying supplies and holding ladders.
We find that although trainjng requires teaching
inmates, training inmates and supervising their work, is
focused on assisting the Maintenance Electrician Foreman, and
the work falls within the meaning of the phrase "devoted to
electrical work." Therefore, although the Maintenance
Electrical Foreman is only doing electrical work himself
approximately 25% of the time he "devotes" more than 25% of
his time as he suggested in his testimony to electrical work.
Page 11
Mr. Ennis testified that he prepared Work Board
Reports, for the use of the Parole Board, and for assistance
in the assessment of the inmates. for the Temporary Absence
Program to reflect the inmates' attitudes, co-operation and
industriousness. Be would complete misconducts reports and
earned remission reports on the inmates, and would complete
occurrence reports on any incident involving the staff or the
inmates, when applicable.
There was no indication of the amount of time spent
doing these reports and therefore we find that the union did
not prove that these duties required such a significant
proportion of time which impacted to any great extent on the
time on which they devoted to electrical work. As we find
that the electrical work performed includes supervision and
training inmates to perform electrical functions, the Union
did not discharge the burden upon it to show that the
grievors did spent less than 60% of their time devoted to
electrical work and to supervising electricians.
The duties which the grievors had to train and
supervise the inmates work, also falls under the description
that "In addition to journeyman tradesmen, they may supervise
unskilled or semi-skilled employees and patient, resident,
trainee or inmate helpers." As this statement specifically
refers to the supervision of inmates, it will by implication
include a responsibility for the custody of the inmates, as
the very essence of a correctional institution is to ensure
the custody~ of its inmates. Any employee who works. in a
correctional institution will have the security of the
inmates as a primary consideration in the performance' of
their .job. The Maintenance Electrical Foreman's
responsibility to ensure that the inmates are frisked
whenever they arrive or return to their cells, or to ensure
i
5
Page 12
that he does a body count of the inmates every one half hour
is part of those tasks. These responsibilities are reflected
in both the job standard and in the Job Specification.
The Board therefore finds that the duties which the
grievors perform as Maintenance Electrical Foremen are
contemplated by the description. However, the question must
also be asked whether their job functions "better fit" those
of the Industrial Officer 3.
The class standard of the Industrial Officer 3, the
position which the grievors are seeking is falls under the
category of Correctional Services and states as follows:
Employees in positions allocated to this class
manage a small to medium or relatively complex
production operation such as the Tailor Shop at
Rideau Industrial Farm, the Tailor Shop at Millbrook, or the Upholstery Shop at Guelph, or the
Tailor Shop at Burwash. OR They assist in
management of the larger or more complex production
operations such as the Brick .and Tile Mill at Mimico, the Machine Shop, or the Tailor Shop at Guelph.
As managers, they are responsible for
estimating and procurement of materials, for discussing costs with superiors and for making
recommendations on new products to be processed.
They maker recommendations to superior on staff
personnel matters.
As assistants to managers, they share the
responsibility for quantity and quality of
production and for security of inmates, They
personally perform work requiring technical skill,
experience and knowledge comparable to journeyman
standing in a trade.
These employees train groups of inmates in
good work habits and technical skills! control the quality of production and assign inmates to various
Page13
tasks in accordance with their capabilities. They prepare daily reports on inmates' industry and conduct. They may take over any position in the
production routine in order to investigate and
correct complaints or to demonstrate proper work
procedures.
The essence of the correctional officer
classification is. that those officers are primar.ily
responsible for the custody of the inmates. The development
of the industrial officer series indicates that there are
some correctional officers who have another role which is
still mainly directed towards the inmates' rehabilitation.
If one looks at the Industrial Officer Series as a
whole, one sees that the primary focus of these employees is
to ensure the custody of the inmates and to train and to
direct them in the production of various products. The first
sentence of each level of the industrial officer series
supports this premise. The Industrial Officer 1 standard
states:
Employees in positions allocated to this class
instruct and direct an assigned group of inmates in
the processing in volume.of various products, food,
clothing and maintenance supplies at reformatories
and industrial farms.
The Industrial Officer 2 standard states:
Employees in positions allocated to this class are
engaged in the supervision of work and instruction
of inmates in various industries at reformatories
and industrial farms.
Finally at the third level, which the grievors are seeking to
be classified the standard states:
Employees in positions allocated to this class
manage a small to medium or relatively complex
production operation such as the Tailor Shop at
Page14
Rideau Industrial Farm, the Tailor Shop at Millbrook, or the Upholstery Shop at Guelph, or the Tailor Shop at .Burwash. OR They assist in
management of the larger or more complex production
operations such as the Brick and Tile Mill at Mimico, the Machine Shop, or the Tailor Shop at
Guelph.
The other duties referred to in each standard of this series
elaborates on the employees' involvement with the inmates
and the responsibilities flowing therefrom.
The difference with the Maintenance Electrical
Foreman standard is that the primary purpose and emphasis in
this job is the maintenance of the electrical plant. This
focus is further emphasised by the categorization of the job
among Maintenance Services. As the job takes place in a
correctional institution, the work includes general
electrical requirements, and electrical requirements relating
to the security of the institution, such as being responsible
for the lighting and the computerization of exit doors. In
carrying out the electrical work, the Maintenance Electrical
Foreman trains and uses inmates for assistance. As the work
takes the electricians and the inmates to various parts of
the institution, the degree of contact and supervision is
high. Supervision is also necessary to prevent any inmate
from attempting to sabotage the electrical system, and to
ensure that hydro standards are met.
We find on the evidence that the work which the
grievors performed was primarily directed to the maintenance
and installation of electrical work as opposed to being the
custodian of the inmates with the primary focus on their
security. Supervision of the inmates is merely inherent to
any job which brings an employee in contact with the inmate.
Page 15
We also find that the nature of the relationship
with the inmates and the nature of the workâthey perform does
not fall within the context of. a "production operation"
whether on a small, medium or large scale. Ms. Brent in , . . QPSEU (Townsend) and The Crown In Rme of Ontario m
of Correctional ServW G.S.B. 0022/85 (G. Brent) at page
2.7, stated that the people assigned to the Industrial Officer
series, " . . . are charged with running an enterprise to
produce certain end products using the labor of inmates."
The grievors jobs do not meet the criteria set out
in the Industrial Officer 3 standard as their work is not
related to the production of items. They do not take over
"any position in the production routine". Nor are they
managers who discuss costs with superiors and make
recommendations on new products to be processed. They are
also not assistants to managers who share the responsibility
for quantity and quality of production. These requirements
in the Industrial Officer 3 standard are emphasized by the
qualifications for the position, which require an ability to
"establish production methods and to control waste and
quality; ability' to recommend and evaluate new products for
processing." These are significant duties of this
classification which the grievors do not have.
There are certain aspects of the Industrial Officer
3 job that the grievors share. They do train groups of
inmates in good work habits and technical skills and assign
inmates to various tasks in accordance with their
capabilities. These duties flow from the supervision of
inmates as contemplated by the Maintenance Electrical Foreman
standard.. The grievors prepare reports on the inmates'
industriousness and on conduct, but not daily as set out in
the Industrial Officer 3 standard. These functions are also
part of the grievers' supervisory functions.
Page16
However, as stated in QEXIJ (Edwards & MO~~V) a&
The Crown In Rraht of Ontario (Mm . 8 # ,.,
Servw G.S.B. 11/78 (K. Swinton) at page 11:
. . . 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 show that he falls within
the higher classification, and where there is extensive 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.
We find that grievers' duties in practice and in
the job standard overlap with some of the duties of the
Industrial Officer 3; however, there are significant
differences in the emphasis in the Industrial Officer series
towards production and towards the direction of the inmates
in the .production process, which does not substantiate a
.finding that the grievors are performing the same duties as
an Industrial Officer 3.
The issue of the Custodial Responsibility Allowance
is not a matter of classification. As stated in Townsend
decision (supra) at page 25:
If the job is not properly classified, the fact
that the allowance is paid does not correct that
wrong. We do agree, though, that if an employee's
job is properly within a class series which does
not recognize such responsibility as being part of
the job, then the fact that those responsibilities
are assigned when the job is performed within a
correctional facility should not enable the
employee to claim that his job should be classified
in any of the "classes which already take into
account responsibility fork the control on
inmates...
Page 17
The role of a Maintenance Electrical Foreman is to
be responsible for the all electrical matters in a Government
building or'institution. If the grievor were to change
ministries, the responsibilities for maintenance and
installations of wiring would would remain. The change would
lie in the responsibility for the inmates, although the
Maintenance Electrical Foreman may be responsible for other
unskilled workers as set out in the job standard.
The Board must first determine whether the
classification is proper, and then if the criteria set out in
Appendix 8 to the collective agreement for the Custodial
Responsibility Allowance is met, the grievors are entitled to
the Custodial Responsibility Allowance. The applicable
requirements are set out in paragraph (c) (i) and (d) of
Appendix 8 to the collective agreement, as follows:
(c) (i) they are required, for the major portion of
their working time, to direct inmates ,or
wards engaged in beneficial labour;
or
(ii) as group leader/lead hands, they are
directly responsible, for the 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.
This allowance is available to certain classes of
employees, such as the grievers' which positions do not
already take into account responsibility for the control of
inmates. Supervision is compensated by the Custodial
Responsibility Allowance. The Union may feel that the amount
allocated for the allowance is insufficient bearing in mind
the responsibilities of the job, but to change the rate of
Page 18
compensation is a matter for negotiation and is not a matter
for this Board.
In conclusion, we therefore, find that the duties
of the grievors fit squarely within the classification of the
Maintenance Electrician Foreman and that there is no basis
upon which to order the Ministry to reclassify the grievors
and accordingly the grievances are dismissed.
Dated at Toronto, this 27th day of April, 1990.
B< Kirkwood, Vicechairperson
S. Urbain, Member
F. Collict, Nominee