FPSLREB Decisions

File: 166-2-26714 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN GORDON H. SMITH Grievor and TREASURY BOARD (Solicitor General Canada - Correctional Service)

Employer

Before: P. Chodos, Deputy Chairperson For the Grievor: D. Dagger, Counsel, Public Service Alliance of Canada For the Employer: H. Newman, Counsel Heard at Calgary, Alberta, February 27, 1996

Decision Page 1 DECISION Mr. Gordon H. Smith is a Correctional Supervisor (CX-3) employed at the Drumheller Institution. In his grievance Mr. Smith maintains that on the weekend of May 7 and 8, 1994 he was in charge of the penitentiary from 0700 to 1500 hours, and during this period he had assumed the duties of a Unit Manager; he claims therefore that he was entitled to acting pay at the AS-5 level, the classification level for the Unit Manager position.

The facts in this case are not in dispute, the only evidence being the testimony of the grievor and certain documentation which was submitted on consent of the parties. Mr. Smith has been employed as a Correctional Officer since October, 1966 and currently his substantive position is that of a Correctional Supervisor at the CX-3 classification, a position which he has held since 1989. In 1994 Mr. Smith was on shift work and was required to work all three shifts, including weekends. A Unit Manager (AS-5) however is required to work only the day and evening shifts, Monday to Friday. After October 31, 1995 unit managers worked straight days, that is, no evening or weekend shifts; the same is true of Mr. Smith as of that date.

The grievor testified that on one occasion in 1994 he had replaced the Unit Manager on an overtime shift; on another occasion he worked five consecutive evenings as part of his normal shift as the acting Unit Manager. On both those occasions he had received acting pay at the AS-5 level. However, there were a number of weekends, including May 7 and 8, 1994, when he was the senior officer on site at the Drumheller Institution; that is, he was in charge of the Institution at that time, as there was no unit manager scheduled to work on the weekends. Mr. Smith maintained that his duties on the weekends were exactly the same as an acting unit manager on the weekdays; that is, it was his responsibility to ensure the safety of the 35 to 40 staff members at the Institution on weekends; he would be responsible for dealing with such crises as riots, fights, escapes, etc. until a more senior manager arrived on the scene. He noted one example where a CX-2 at the main gate contacted him because a drug sniffing dog utilized by the Correctional Officers had reacted to a female visitor who had reported to the gate. He had assumed responsibility for refusing entry to this person and explained the reasons for doing so to her. Mr. Smith stated that he could not telephone the duty officer to find out what to do next; it was his responsibility to deal with the matter on the spot. He would contact the duty

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Decision Page 2 officer after any incident to report to him what he had done; he would also contact regional headquarters in Saskatoon and on occasion in Ottawa to inform his superiors of any significant events. Mr. Smith noted that on the weekends there are often more visitors than on the weekdays, as various socials are usually held on weekends. He submitted that his duties are no less onerous on the weekends than on those weekdays when he was paid as an acting Unit Manager. Mr. Smith acknowledged that on weekends a Unit Manager is assigned as a duty officer, and can be contacted by phone by the Correctional Supervisor, if necessary; he agreed that he is provided with a cellular phone for that purpose. He observed that from time to time a Unit Manager may visit the Institution on weekends for periods of about a half hour.

Mr. Smith also acknowledged that in accordance with his job description (Exhibit G-2), and the Classification Standard for the Correctional Services Group (Exhibit E-1), a Correctional Supervisor is supposed to act as the officer in charge when a Unit Manager is absent, and that his responsibilities include acting as a crisis manager.

On behalf of the grievor Mr. Dagger submitted that in accordance with clause M-27.07(a) of the Master Agreement between the Treasury Board and the Public Service Alliance of Canada there are two criteria to be satisfied in respect of the payment of acting pay: 1) the employee is required by the employer to substantially perform the duties of a higher level, and 2) the employee actually performs those duties. Counsel for the grievor submitted that the grievor had satisfied those two conditions in respect of his responsibilities which he performed on the weekends when the Unit Manager was not on site at the Institution. Mr. Dagger observed that, when a Unit Manager is absent on weekdays, the Correctional Supervisor is required to act in that position and when doing so receives acting pay. The only distinction on weekends is that the employer does not provide for a position identified as "Unit Manager". Counsel submitted that it would be improper for the employer to deny acting pay when on other occasions it provides acting pay for exactly the same duties. Mr. Dagger maintained that if the employer's actions were upheld, employees could effectively be denied a collective agreement entitlement, by merely providing in the job description that in the absence of a more senior officer employees must perform those duties. To give this provision meaning it must be held that acting pay is payable when a more senior officer is absent; otherwise clause M-27.07 would be Public Service Staff Relations Board

Decision Page 3 rendered nugatory, and the employer would in effect be getting something for nothing, merely by "institutionalizing" the acting pay requirements in job descriptions and the classification standard. Such action constitutes a blatant attempt to circumvent the requirements of clause M-27.07. Mr. Dagger cited the adjudication decisions in Miller (Board file 166-2-19665) and Reiner (Board file 166-2-13879) in support of his submission.

Counsel for the employer replied that in effect the grievor is attempting to submit a classification grievance; that is, the grievor appears to be concerned about the classification level of a Correctional Supervisor. Mr. Newman agreed that Correctional Supervisors have a heavy responsibility when in charge of an institution; however, this is recognized in the classification standard; it has also been recognized that there can be overlapping duties and responsibilities between various classifications. Counsel submitted that it is management's prerogative not to have the Unit Manager on site on weekends. He noted that pursuant to Exhibit E-1 (that is, the Classification Standard) the Correctional Supervisor's duties subsume responsibility to act as the Officer-in-Charge in the absence of a Unit Manager, and to act as crisis manager when required. When performing within the scope of his own duties, the Correctional Supervisor cannot be said to be acting at a higher classification level. In support of his submission Mr. Newman referred to the adjudication decisions in St.-Georges, (Board file 166-2-22129), and Cameron (Board file 166-2-25643).

Reasons for Decision The parties agree that the resolution of this grievance turns on the proper interpretation and application of clause M-27.07(a) of the Master Agreement, which provides as follows:

(a) When an employee is required by the Employer to substantially perform the duties of a higher classification level in an acting capacity and performs those duties for at least the period specified in (b) below, the employee shall be paid acting pay calculated from the date on which he or she commenced to act as if he or she had

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Decision Page 4 been appointed to that higher classification level for the period in which he or she acts,

(b) for the number of consecutive working days as follows: Group Levels No. of Days or Shifts ... ... ... CX (S&NS) 1 to 6 1 ... ... ... In essence, it is the grievor's contention that he performed the duties of a higher classification, that is, the duties of a Unit Manager on the weekend of May 7 and 8, 1994 and is therefore entitled to acting pay on that occasion. In support of his contention he notes that he was in receipt of acting pay when he performed those duties on weekdays, when the Unit Manager was not available because of, for example, illness.

With all due respect, it is my view that this grievance cannot be upheld, for the following reasons. Firstly, I agree with counsel for the employer that both Mr. Smith's job description as Correctional Supervisor, and the relevant Classification Standard indicate that it is part and parcel of the grievor's normal range of duties and responsibilities to act as Officer-in-Charge from time to time and to assume the role of crisis manager when, in his capacity as Correctional Supervisor, he is the senior officer at the Institution. Accordingly, when performing those duties it cannot be said that he was acting at a higher classification; rather, he was acting within the ambit of his own position, and within the ambit of his own substantive classification. While there may be an overlapping of responsibilities between the Correctional Supervisor's position and the position of Unit Manager, that in itself is not unusual, nor is it per se an abuse of the employer's authority, or an attempt to circumvent the provisions of the collective agreement in respect of acting pay. As noted by Board Member Galipeau in the Cameron decision (supra) "... the fact that the grievor performed a task which could be done by the incumbent of an AS position or an FI position does not have the effect of transforming the work into the "substantial" performance of the duties of an FI position" (at p.8).

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Decision Page 5 Furthermore, I am not convinced that the duties and responsibilities of the grievor were precisely the same on weekends, as they were when he acted as the Unit Manager on the weekdays. The evidence indicates that on the weekends a Unit Manager is assigned responsibilities as a duty officer, and is expected to be available to be contacted by phone by the Correctional Supervisor, if necessary. Indeed, it was Mr. Smith's testimony that he would in fact telephone the Unit Manager on weekends to advise him of events that were occurring at the Institution, and how he had responded to them. It appears however that when a Correctional Supervisor acts in the Unit Manager's position on weekdays, a Unit Manager is not assigned responsibility as a duty officer. Consequently, when acting as Unit Manager on weekdays, Correctional Supervisors do not have this back-up. That is, the extent of their responsibility is greater when acting as Unit Manager on weekdays.

Accordingly, for the reasons noted above, the grievance is denied.

P. Chodos, Deputy Chairperson.

OTTAWA, March 19, 1996. Public Service Staff Relations Board