GSB#2000-0960, 2001-0064, 2001-0065, 2001-0069, 2001-0070, 2001-0269

UNION#2000-359-0016, 2001-0521-0003, 2001-0521-0011,

2001-0521-0009, 2001-0521-0008, 2001-0308-0015

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Rainhard et al)

Union

• and -

The Crown in Right of Ontario

(Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Richard Blair

Ryder Wright Blair & Holmes LLP

Barristers and Solicitors

FOR THE EMPLOYER

George Parris

Ministry of Government Services

Labour Practice Group

Counsel

HEARING

March 30, 2010

Decision

1There are a number of grievances before me filed by employees claiming entitlement to the Custodial Responsibility Allowance (“CRA”) which is referenced in the current Collective Agreement in Article 7.8 and, more importantly for our purposes, in Appendix COR2. A virtually identical provision has been a feature of previous collective agreements going back to at least 1984. In essence, the CRA is an allowance of $2,000.00 per year payable to employees in the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services and employees working in training schools operated by the Ministry of Children and Youth Services, provided the employee fulfills certain requirements. In order to efficiently address the issues raised by all of the grievances, the parties agreed to first focus on six grievances filed by Electronic Monitoring Officers (“EMOs”), which fall within the Rehabilitation Officer, Correctional Services class series. Five EMO grievances were filed in January of 2001 and one was filed in August of 2000. The Union provided particulars setting out the duties and responsibilities of the six EMOs and the parties agreed, on a without prejudice basis, to make submissions as to whether the EMOs are entitled to the CRA based on the Union’s best case, as reflected by the EMO particulars. If the Union’s position is not sustained based on its best case, it will be unnecessary to deal with the Employer’s objections to the grievances, which include a timeliness objection.

2Appendix COR2 provides that employees in the 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 offenders 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

offenders or wards engaged in beneficial labour;

or

(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 offenders or wards engaged in beneficial labour;

and

(d) they are responsible for the custody of offenders or wards in their charge and

are required to report on their conduct and lay charges where breaches of

institutional regulations occur.

3The Union takes the position that the six EMOs fulfill all of the above requirements and are therefore entitled to the CRA. In contrast, the Employer maintains that they do not meet the requirements in (b), (c) (i) and (d).

4The particulars filed by the Union provide a general description of the EMO position as well as some that modify or supplement the general description for each of the six employees. The EM Program has been renamed and undergone substantial changes since the grievances were filed. In 2003, the EM Program was renamed the Electronic Surveillance Program and later became the Electronic Supervision Program. EMOs are now called Electronic Supervision Resource Officers. For convenience, I will continue throughout this decision to refer to the program as the EM Program and the position as the EMO position. Since 2001, the work locations of employees engaged in electronic monitoring have moved from within the institutions to other facilities. Since 2006, EMOs have worked out of Probation and Parole Offices and since December of 2008, they perform their work from their desks without the need to have as much face to face contact with inmates. In setting out the duties of the EMOs referenced in the particulars, I will provide a summary of their duties and responsibilities primarily for the time

when they filed their grievances. I am taking this approach out of a sense that as changes occurred over time, particularly after December of 2008, the case for the payment of the CRA becomes less compelling. The EMOs who filed grievances claiming the CRA are Ms. D. Rainhard, Mr. R. Hogue, Mr. M. Ehl, Mr. C. Elliot, Mr. R. Gordon and Mr. P. Riches.

5The EM Program involves the electronic monitoring of adult offenders who are permitted to serve their sentence in the community with conditions. The primary reason for release into the community is to permit the offender to continue working at a job. Other reasons include educational, medical and the need to care for a family member. Participants are fitted with an electronic ankle bracelet that transmits radio frequency signals to a receiver installed in the offender’s home in order to track continuously the offender’s presence or absence at the residence. Participants are required to abide by a pre-approved schedule and unauthorized absences or other violations of the EM Program are reported, investigated and dealt with in accordance with established protocols.

6The EMO is responsible for assessing inmate applications for the EM Program. This involves reviewing the application, interviewing the inmate, doing background checks (i.e. CPIC) and confirming the truthfulness of the reason given for returning to the community, such as confirming with an employer that the inmate will have continued employment if released. It also involves visiting the inmate’s intended place of residence to assess whether the home the inmate was returning to is conducive to rehabilitation. The EMO would then write a report containing the relevant information with a recommendation and submit the report to the person or entity responsible for approving or rejecting the application.

7If approved, the EMO would fit the offender with a bracelet and transport the offender to his or her home, without the assistance of correctional staff. Depending on the location of the residence, the commute could take as long as one hour or more. Upon arriving at the residence, the EMO would install a transmitting/receiving device into the telephone box that would keep track of the offender’s proximity to the box. The EMO would program the equipment so that the offender had to be within a prescribed range of the transmitter/receiver during certain hours of the day. The programmed time could be set to take into account the offender’s work schedule and the prescribed range depended on the dimensions of the property. The data recording the offender’s presence and absence from home is transmitted to remote monitoring equipment and any unauthorized absence would set off an alarm.

8The EMOs are supplied with pagers and were expected to carry them at all times. Some were also given laptops. An alarm would be transmitted to the pager as well as the monitoring equipment at the institution. During non-working and evening hours, a night shift EMO was responsible for responding to alarms, although many EMOs had to respond to alarms and phone calls from the institution during non-working and evening hours.

9In addition to responding to alarms, EMOs were responsible for monitoring offenders on an ongoing basis. The EMOs would use the electronic monitoring program at the institution (and on laptops if they had one) to examine and analyze when offenders were at their residence to ensure compliance. They would call offenders at home or at their work location to ensure that they were complying with the conditions of their release. In addition, EMOs would go into the community in a Ministry vehicle with two devices similar to the transmitter installed in the offender’s home phone. These devices similarly act as transmitter/receivers that beeped when the offender was within a certain proximity of the device. One device was plugged into the vehicle’s cigarette lighter and connected to an antenna that was placed on the back windshield of the vehicle (the “Drive By” device). The other device, whose signal was weaker than the Drive By device, was a handheld transmitter/receiver that could be used when the car was unable to get close enough to a building (the “Walk By” device). These devices could be used to determine if an offender was at work.

10If an offender breached a condition of his or her release, the EMO was responsible for laying a misconduct charge, bringing the inmate back to the institution and revoking the offender’s participation in the EM Program. The laying of a misconduct charge constituted automatic revocation of the offender’s participation in the EM Program.

11As noted previously, in addition to the above general information about the EM Program and about the work of an EMO, the Union provided more detailed information for each employee regarding such matters as how many offenders were interviewed in a week at the institution, how long an interview lasted, how often bracelets were placed on offenders and how long this took, how long it took to drive the offender to his residence and set up the EM equipment and the amount of time each EMO spent monitoring offenders in the community to ensure that they were compliant with the conditions of their release. Although this detailed information was helpful, I do find it useful to refer to those details here. I simply note that the vast majority of the EMO’s time when they filed their grievance, as one would expect from their job title, was spent monitoring offenders in various ways to ensure that they adhered to the conditions of their release while in the community.

12During their submissions, counsel referred me to the only two decisions which determined whether an employee was entitled to the CRA. Both cases deal with employees who held a position within the Rehabilitation Officer, Correctional Services class series. I will refer to these decisions in some detail.

13In OPSEU (Cannon) and Ministry of Correctional Services (1991), GSB No. 1714/90 (Samuels) (hereinafter referred to as “Cannon”), the grievor was the Coordinator of the Temporary Absence Program (“TAP”) and the Institutional Work Program (“IWP”). The only issue in the case was whether the grievor satisfied the condition in (c) (i) of the Appendix, namely, was she required, for a major portion of her working time, to direct offenders engaged in beneficial labour. The grievor’s claim for the CRA was based primarily on her work with the IWP. The IWP consisted of inmates working at jobs in the institution, such as laundry and kitchen jobs. As Coordinator of the IWP, the grievor’s duties included selecting offenders for the program, which included an interview; escorting offenders to the medical office; escorting offenders to their living quarters; escorting offenders to their work locations; and, checking the work stations to ensure offenders were doing their assigned jobs. She did have the authority to issue a misconduct to an offender. The grievor spent 80% of her time on the IWP and 75% of her time directly dealing with offenders under both programs. The Board concluded that the grievor was required to direct offenders engaged in beneficial labour for the majority of her working time. It found that she directs offenders by taking primary responsibility for them while escorting and counseling them. It also found that the offenders she directs are engaged in beneficial labour on the basis of the following analysis, starting at page 4:

Though she herself does not operate the kitchen, the laundry, or the gardening service, her contact with the inmates on the IWP is part and parcel of the labour itself. The “engagement” in beneficial labour involves the whole IWP process – selection, escort, monitoring, counseling, and performing the work itself. The grievor’s contact with the inmates is not simply part of the general care and custody undertaken by correctional officers. Her contact with the inmates is for the purpose of having them perform beneficial labour.

14The Cannon decision included a strong dissent from Mr. Collict. He

disagreed with the view that escorting and counseling offenders amounted to directing them when they were working.

15In OPSEU (Holder/Streitenfeld) and Ministry of Correctional Services (1994), GSB Nos. 590/92, 591/92 (Barrett) (hereinafter referred to as “Holder”), Streitenfeld held the position of TAP Coordinator and Holder was a Classification Officer. Streitenfeld was involved in all institutional and community activities related to certain temporary absence programs. The Ministry contracted with Wayside Community Resource Centre (“Wayside”) to house up to 30 offenders who were allowed to leave the premises to work, etc. Streitenfeld assessed the offenders who applied to the program, including interviewing them, and then made a recommendation to the Superintendent. He would advise the offender of his rights, obligations and the rules at Wayside. Wayside staff supervised the offenders and ensured that they obeyed the rules. Streitenfeld monitored the behaviour of the offenders to the extent that he had conversations and received reports from Wayside staff, and occasionally laid misconducts if Wayside was unable to correct a behavioural problem. The John Howard Society (“Society”) provided work for offenders who served their time on weekends. Streitenfeld gathered information about offenders for the Society. The Society interviewed the offender and made the decision whether to accept the offender into the program or not. Since Streitenfeld worked Monday to Friday and these offenders served their time from Friday night to Monday morning, he rarely had personal contact with these offenders.

16As a Classification Officer, Holder provided offenders with a variety of services. He interviewed offenders and gathered information in order to make recommendations for treatment or other programs and the placement of offenders into institution work programs. Holder assigned offenders to the institution work programs, to the worker dormitory and he decided where they will work. Offenders were escorted to him for interviews and were escorted to their work sites by others. Holder advised offenders about their responsibilities at the work sites and he usually conducted an inspection of the work sites every day. Other employees supervised the offenders at the work site and had the authority to issue misconducts. These employees did receive the CRA. Holder could also issue a misconduct if he observed bad behaviour.

17The Board began its analysis by noting that traditionally employees occupying the positions held by the grievors have not received the CRA, but then there was the result in Cannon. The Board reviewed the findings in Cannon at some length, particularly the factual conclusion that Ms. Cannon was required to direct offenders engaged in beneficial labour for the majority of her working time. The Holder decision also made reference to Mr. Collict’s perspective on the issue as reflected in his dissent. After entertaining submissions on whether the grievors met the requirements of the CRA provision, the majority concluded that they did not meet all of the requirements for the following reasons:

We do not agree that either of these grievors can fit himself within the parameters of Cannon. These grievors do not take primary responsibility for escorting inmates about the institution. They do not take primary responsibility for counseling inmates concerning their behaviour at the work stations. They do not have primary responsibility for dealing with behavioural problems at the work site. They do not spend 70% of their time directly involved with inmate workers while they are working or going to or from work. In the case of Mr. Streitenfeld, he would seldom even see an inmate working because all work is done away from the institution and the inmates are supervised while working by a variety of people, but never by Mr. Streitenfeld. Mr. Holder spends about 30 minutes a day visiting all of the work sites, but this, in our view, does not constitute directing inmates engaged in beneficial labour. Neither grievor has custody of the inmates or performs escort services, although it could be said they are “in charge” of the inmates during interviews. We find that in order to be eligible for the custodial responsibility allowance, a person must, for the majority of his working time, direct inmates while they are engaged in beneficial labour. In Ms. Cannon’s case, she spent 70% of her working time having primary responsibility for inmates while they were working or engaged in work-related activities, such as being medically examined to determine fitness for work and going to and from work, as well as behaviour management.

Furthermore, we think that these grievors’ positions are covered by classes which already take into account responsibility for the control of inmates. Their whole job descriptions are inmate focused…they would have nothing to do if there were no inmates to work with. They are unlike the cooks, storekeepers and laundry workers who have a job to do entirely unrelated to inmates, but get the custodial responsibility allowance because they direct inmates in assisting them.

18A review of these decisions leads to the following observations. As noted previously, both decisions are dealing with positions that fall within the Rehabilitation Officer, Correctional Services Class series. Cannon only addresses the requirement in (c) (i). The result in Cannon is based on a factual finding and an interpretation of the words “to direct inmates…engaged in beneficial labour” which indicates that it is not necessary for an employee to directly supervise the work performed by offenders in order to satisfy the requirement. Ms. Cannon’s role as the Coordinator of the TAP had virtually no relevance to whether she was entitled to the CRA. The Holder decision deals with the requirements in (c) (i) and (b). Given that Ms. Cannon and Mr. Holder were essentially engaged in similar duties, it is difficult to reconcile the results in these decisions. Although there is an attempt to distinguish the case on the facts, a fair reading of Holder suggests that the majority believed Cannon was wrongly decided. In interpreting (c) (i), Holder clearly concludes that an employee will only be entitled to the custodial responsibility allowance if the employee is required to “direct inmates while they are engaged in beneficial labour” for a majority of his or her working time. Holder also finds that the grievors do not meet the requirement in (b) because their “positions are covered by classes which already take into account responsibility for the control of inmates.” One common element of both decisions is that Ms. Cannon and Mr. Holder performed their duties primarily within their respective institutions and their responsibilities related to offenders who were assigned to perform work at the institution.

19I turn now to whether the EMOs fulfill all of the requirements set out in Appendix COR2 thereby entitling them to the CRA. Whether or not the EMOs fulfill the necessary requirements is a question of fact, subject of course to the interpretation of the provisions setting out the requirements. A reading of Appendix COR2 in its entirety suggests that the purpose of the provision is to provide additional compensation to employees in the designated Ministries who are required to assume responsibility for offenders even though they occupy positions in which their duties could be performed without assuming any such responsibility. It is instructive that cooks, storekeepers and laundry workers have received the CRA. The defined duties of their position do not involve responsibility for offenders, but they assume such responsibility when they direct offenders assigned to work in their respective area of the institution. There is no dispute that the EMOs fulfill the requirement in (a) in that they are not professional staff.

20The requirement in (c) (i) contains two main elements. Employees are eligible for the CRA if “they are required …to direct offenders …engaged in beneficial labour” and if they are engaged in directing offenders “for a major portion of their working time”. The first element can be broken down further. It was unnecessary for Cannon or Holder to define the term “beneficial labour”. As noted previously, Ms. Cannon and Mr. Holder were assigned duties in work programs at their respective institutions. In the case at hand, the EMOs monitor offenders who are released into the community for a variety of reasons. Even assuming all the offenders they monitor were released to maintain employment, the labour those offenders perform is unrelated to the institution from which they were released. When one considers the term beneficial labour in the context of (c) (i) as a whole, one is left with the inevitable conclusion that the term refers to labour that is beneficial to the institution. This is the only type of labour an employee of the institution would be directing. I therefore agree with the Employer’s position that the EMOs were monitoring offenders who were not engaged in beneficial labour and for this reason alone they are not entitled to the CRA.

21I also agree with the conclusion in Holder that the requirement “to direct offenders …engaged in beneficial labour” is intended to only cover employees who “direct inmates while they are engaged in beneficial labour”. It is quite a stretch to interpret the relevant words in (c) (i) to cover a situation where an employee merely is involved in directing offenders in his role as coordinator of a work program, which is what appears to have occurred in Cannon. Finally, there is also the condition that the employee spends the majority of his or her working time directing inmates engaged in beneficial labour. Apart from what constitutes beneficial labour, the EMOs do not come anywhere close to directing offenders while they are engaged in beneficial labour for a major portion of their working time. To reiterate, the EMOs spend the vast majority of their working time monitoring offenders to ensure that they comply with the conditions of their release.

22By not fulfilling the requirement in (c) (i), the EMOs are not entitled to the CRA. Hopefully, this determination and the reasons for it will assist the parties in assessing the merits of the remaining grievances. It is unnecessary for me to decide whether the EMOs fulfill the requirements in (b) and (d) of the Appendix and I am not inclined to decide these issues. However, I will make some observations about them.

23It appears that the requirement in (d) has not previously been the subject of adjudication. This particular requirement is that the employee is responsible for the custody of offenders and is required to report on their conduct and lay charges where breaches of institutional regulations occur. Employer counsel argued that EMOs do not meet the requirement because they spend most of their time monitoring individuals who are not in custody. He also argued that any reporting of their conduct and the laying of charges has to do with breaches of the conditions of release, and not related to breaches of institutional regulations. Although it is true that EMOs spend a major portion of their time monitoring individuals released into the community, they also spend some time with offenders who are in custody during the assessment process. EMOs will interview offenders, perhaps escort them as part of the interview process, place the electronic bracelet on the offender and escort the offender from the institution. As the particulars for the Mimico EMOs disclose, EMOs can report any misconduct of offenders and lay charges for a breach of institutional regulations, although they rarely have to exercise this authority because they are dealing with offenders who are seeking release and are therefore on their best behaviour. Insofar as the requirement in (d) is concerned, a question worth asking is whether the circumstances of the EMO and a Cook are materially different in regard to their responsibilities when dealing with inmates within the institution. I note that unlike in (c) (i), there is no indication that the employee needs to satisfy the requirement in (d) for the major portion of his or her working time.

24The requirement in (b) excludes employees from receiving the CRA if they are “covered by classes which already take into account responsibility for the control of offenders …” Holder decided that the grievors’ positions in that case are covered by classes which take into account responsibility for the control of offenders. Since the grievors in Holder and the EMOs are in the same class, Employer counsel submits that I am bound to follow the conclusion in Holder and find that EMOs are not entitled to the CRA because they do not fulfill the requirement in (b). In effect, Union counsel argued that Holder was wrongly decided on this point and should not be followed. I simply note that (b) requires a conclusion about whether the employee is covered by a class which already takes into account responsibility for the control of offenders. It is not entirely obvious from a review of the Rehabilitation Officer, Correctional Services class series that employees covered by this class are responsible for the control of offenders. Holder appears to focus on the job descriptions of the grievors and the fact that they were inmate focused. It is not clear that job descriptions have any relevance in determining whether the requirement in (b) has been satisfied. Since some of the remaining grievances were filed by employees who are covered by the same class series, counsel will have the opportunity to make further submissions on this issue.

25For the foregoing reasons, the six EMOs are not entitled to the Custodial Responsibility Allowance. Accordingly, their grievances are hereby dismissed.