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HomeMy WebLinkAbout1996-1179.Burditt.97-05-16 Decision OIfTARIO EMPLOYtS DE LA COURONNE CROWN EMPLOYEES DE L'OIfTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G"1Z8 TELEPHONE/TELEPHONE (41~) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACStMtLE/TELECOPtE (41~) 326-1396 GSB # 1179/96 OPSEU # 96B983 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Burditt) Grievor - and - the Crown in Right of Ontario (Ministry of Health) Employer BEFORE F D Briggs Vice-Chair FOR THE K Lawrence GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D_ Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING March 12, 1997 ~ Subsequent to the ratIficatIOn of the new collective agreement WhICh resulted from a five week stnke, It became apparent, through the filmg of dozens of gnevances, that there was a fundamental dIspute between the partIes wIth respect to ArtIcle 3 15 and ArtIcle 3 38 AccordIngly, the partIes agreed that an expedIted process should be agreed upon to deal WIth the numerous outstandmg gnevances That agreement stated. NotwIthstandIng the provIsions of the Collective Agreement, the parties agree to abIde by the followmg procedure m order to effectively deal With gnevances ansmg out of the apphcatIOn of Articles 3 15 and 3 38 The parties further agree that entenng mto thiS procedure does not COnflict With the provIsions of the Collective Agreement. A) All cases to be mcluded m tlus process will be mutually agreed to by the parties pnor to schedulmg the actual hearmg. B) All gnevances that allege than an employee has not been converted m accordance WIth ArtIcle 3 15 or 338 wIll be forwarded dIrectly to the DIrector ofHwnan Resources m the respective nurustIy C) The MinIstIy's HR department will dIrect such mqumes mto the alleged claun by the gnevor D) Withm a reasonable tune frame, the MinIstry's HR department will forward to OPSEU Gnevance Department, Attention. Kathleen Lawrence, Its response to the gnevance together With the mfonnatIOn that It rehed upon should the gnevance be demed. Attached With the MimstIy's reply to OPSEU will be a copy of the appropnate gnevance. A copy of the response will be proVIded to the local Umon representatIve. E) The OPSEU Gnevance Department will consult With the gnevor based on acts as presented by the MinIStry F) Should the matter be resolved at that stagc, the MirustIy s HR department will be adVIsed m wntmg WIthm a reasonable tune frame. G) If the matter IS not resolved at the OPSEU representative meetmg with a gnevor, there may be dISCUSSions WIth the m1ll1stry and/or a meetmg If requested. H) If there IS no chscusslOn or meetmg WIth the lll1ll1Stry, followmg chscusslOn With the gnevor, OPSEU will adVise the nurustry and MBS, NegotiatIOns Secretanat, that the matter Will be scheduled for arbItratIOn at pre-agreed upon dates I) The partIes agree that m view of consohdatmg and eentrahz111g the handlmg of the gnevances, the Employer wIll not rely upon tune lillllts to refer a matter to arbItratIOn followmg notification of the MmIstry s HR department of mtentlOn to proceed to arbItration. J) The parties agree that m view of dus agreed upon expedIted procedure, grIevors will be allowed a reasonable tune off work WIth no loss of payor crechts to prOVIde background comment and dIrectIOn to the Umon should the matter proceed to arbItration, K) In VIew of the above paragraph, the partIes agree and are commItted to an cxpcdIted process whereby attendance at arbItration wIll not be reqUIred for employees unless mutually agreed upon or ansmg out of exceptional circumstances L) Should the above parah'Taph be mvoked, It IS agreed that a numstI) may not unreasonabh deny a request for attendance at a hearmg, 1 ...--- -- 2 M) It IS agreed that for purposes of tlus special protocol, OPSEU will be entitled to the followmg With regard to the fihng of a grievance, - work lustory of the gnevor - hIStOry of the pOSitIOn - summary sheet for all conversIOns under Article 3 15 and 3.3 8 that have been completed. For greater certaInty, It IS understood that the Umon may reqwre copies of the gnevors' contracts as well as posItion descnptlOns. Such mformatlOn will be supphed by the MinIstry's HR department. N) Mirllstnes through thelT Human Resource department will forward to the OPSEU Gnevance Department, Attention. Kathleen Lawrence, at the earhest convemence, a summary sheet for all conversIOns under ArtIcle 3 15 and 3 38 that have been made dunng the hfet1llle of tlus Collective Agreement. 0) EIther party will have the option of Wlthdrawmg from tlus gnevance arbItratIOn process, generally or for mdlVldual cases, upon notificatIOn to the other party That agreement was dated and SIgned January 15, 1997 However, the partles had been d.tscussmg the process for some tune pnor to the Slgmng of the above document. Indeed, on November 26, 1996 and December 9, 1996, the partIes put two of the outstandmg gnevances before the Board. It was hoped that a detennmatlOn on these two prehmmary gnevances would provtde some guIdance to the partles for other outstandmg matters. It would be helpful to set out Arttc1e 3 15 and Arttc1e 3 38 at tlus pomt. They state CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS 3 15 11 Effective upon the date of ratificatIOn, where the same work has been performed by an employee m the UnclaSSIfied ServIce for a penod of at least two (2) consecutive years, except for SituatIOns where the unclaSSified employee IS replacmg a claSSIfied employee on a leave of absence authonzed by the Employer or as proVIded for under the collectIve agreement, and where the rrumstry has detenruned that there IS a contmwng need for that work to be performed on a full-tIme baSIS, the lIDlllStry shall estabhsh a pOSitIOn wIthm the ClaSSified ServIce to perform that work. 3 15 1.2 Where the rrumstrv has determmed that It will convert a pOSItIOn m accordance With 3 15 1 1, the status of the mcumbent m the pOSitIOn will be converted from unclaSSIfied to claSSIfied, proVIded that the mcumbent has been m the pOSitIOn m questIOn for at least two (2) years. 3 152 F or the purpose of thIS sectIon full-time" shall man a m1ll1murn of one thousand seven hundred and thirty-two and three quarter (1 732 75) straIght- time hours or one thousand mne hundred 1U1d twelve (1,912) straight-time - 3 hours m each year, as applIcable, mcludmg authonzed leaves of absence. However, all hours worked by an unclassdied employee willIe he IS replacmg a classIfied employee who IS on an authonzed leave of absence shall not be mcluded m computmg the armual hours worked by the unclassified employee. GO TEMPS AND STUDENTS 338 1 A GO Temp IS an unclassdied employee who IS on a temporary work assignment arranged by the ClVlI Service ConumssIOn under the GO Temporary Services Program. A GO Temp ceases to be an employee upon completlon or termmatlon, for any reason, of the temporary work assignment. 3 38.2.1 Effective upon the date of ratificatIOn, where the same work has been performed by a GO Temp employee for a penod of at least two (2) consecutIve years, except for situatIons where the GO Temp employee IS replacmg a classified employee on a leave of absence authonzed by the Employer or as provided for under the collective agreement, and where the rmrustry has deterrmned that there IS a contmwng need for that work to be performed on a full-time baSIS, the nurustry shall establIsh a posItion Wlthm the Classified Service to perform that work. 338.2.2 Where the mtrustry has determmed that It will convert a posItion m accordance with 3 38.2 1, the status of the mcumbent m the posItIon will be converted from GO Temp to classified, provided that the mcumbent has been m the positIOn m questIOn for at least two (2) years 3.38.3 The followmg article shall apply to GO Temp employees Article A, 1,2,27 and 86 ThIs gnevance IS the thrrd matter that has come before the Board under the above procedure The gnevor, Ms. Donna BurdItt, alleges that she should have been converted m accordance WIth ArtIcles 3 15 1 1 and by way of remedy asks to be appomted to the classIfied servIce That gnevance was filed on June 7, 1996 Generally speakIng, the partIes were m agreed on the facts There were some matters m dIspute that I wIll address later m thIS deCISIOn. The agreed facts are 1 Ms. Burditt has been employed on a senes of full-tIme contracts from March 1993 to the present. 2 From August 26 1993 to May 1994 she assumed the dutIes of a full-tIme Case Manager when two full-time colleagues decided to Job share, Sandy Parkms and Candy Parrack. ~ I 'I'" 4 3 From May 12, 1994 to July 5, 1995 Donna BurdItt was on WCB leave for carpal tunnel surgery 4 From July 5, 1994 to present she returned to her full-tune unclassIfied posItIon and case load assIgnment. 5 On Apnl 3, 1996 Ms. BurdItt spoke WIth Judy Kerley, Human Resources, to request that her employment status be changed from unclasSIfied full-tIme to classIfied full- tune. 6 On April 12, 1996, Ms. BurdItt wrote to Judy Kerley requestmg once agam that her employment status be changed to classIfied full-tune. 7 On Apnl 18, 1996 a staff meetmg was held for the Adolescent Children's Umt, and durmg thIS meetmg an armouncement was made to staff concerrung the transfer of Adolescent Children's Umt to a Commuruty Based ProvIder that would be contmued to be funded by the Mirustry of Commuruty and SocIal ServIces. 8 Staff meetmgs were also held on May 2, 1996 and May 17, 1996 and the subject of program transItIOn was dtscussed at these meetmgs. 9 Ms. Burdttt filed a gnevance on June 7, 1996 once she was advIsed she would not be converted to full-tune status. 10 On June 21, 1996 the Employer derued the gnevance at Stage 1 11 On July 26 1996 the Employer demed Ms. BurdItt'S gnevance at Stage 2 statmg that she was mehgible for converSIon to classIfied status,. (smce she was) back fillmg for an employee on authonzed leave smce August 1994 Subsequent to the Stage 2 meetIng a supportrng document dated August 29, 1995 was subrmtted to Management WhICh clearly mdIcates tills. The letter of August 29, 1995 from Paul Bourque to Robert Cunnmgham IS attached. 12 On October 16 1996 the Mllllstrv of Commuruty and SOCIal ServIces wrote to Mr Dave Erskme, Umon PreSIdent at St. Thomas Psycillatnc to advIse rum that employees would be given the opportunIty to submIt a proposal for the remvestment of the S TPH Adolescent Children's ServIces Program fundmg. Attached to tills letter was a Request for Proposal (referred to as "RFP") Document. 13 On October 22, 1996 Ms. BurdItt receIved a letter from the Adtrumstrator, Robert Cunrungham statmg that the Mirustry of Health WIll ensure that reasonable efforts, as outhned III OPSEU's CollectIve Agreement AppendIX 14 are taken to aSSIst you III obtammg employment WIth the new ServIce PrOVIder 14 On December 2, 1996 Paul Bourque, actmg Program Director wrote to Ms BurdItt to adVIse her that she would be termmated as of March 31 1997 _., S 15 The Request for Proposal Document outlInes at Page 12, a process for recrUltmg staff presently employed by the Ontano Goverrunent. Attached to the RSP was a lIst proVIdmg mformatIon about employees and positIons held at the Adolescent Cluldren's ServIces Program. The partIes are rn dIspute regardrng two aspects of thIs gnevance The Employer does not agree With the Umon that the gnevor meets the two year requIrement rn a full-tIme posluon as an unclassIfied employee Further, there IS a dIsagreement between the parnes as to whether there IS a "ongorng" need for the work to be done The parnes agreed that ~t IS appropnate for thIS Board to first address the Issue of whether there IS an ongorng need for the work to be done In the event that the Board frnds that there IS an ongorng need for the work to be done, the parnes will address the Issue of whether the gnevor meets the two year requIrement referred to rn the Collecuve Agreement for converSIOn to full-nme classIfied status The parnes were also not rn complete agreement on Paragraph 13 above It was the Umon's pOSItIon that the Employer properly sent the gnevor a letter stahng that It would make reasonable efforts to aSSIst her rn obtammg employment WIth a new servIce provIder The Employer took the posluon that It was a form letter that was rnappropnately sent to some unclassIfied staff as well as to the classIfied employees The gnevor was sent the letter rn error and the fact that she receIved It ought to be gIVen no weIght. The grlevor was a Case Manager rn the Adolescent and ChIldren's ServIces Department of the St. Thomas Psycmatnc HospItal. At the pornt where the gnevor requested converSIOn to classIfied servIce, she had been workmg WIth the Employer for approxImately three years Wlthm days of her submlttrng a formal request for converSIOn, she attended a staffmeeung where she and others were told that a representatIve from COMSOC would be attendmg the next meetmg to dISCUSS the progress of the RFP It can be seen from the mmutes of the meetmg of Apnl 18, 1996, the gnevor and her co-workers were, to some extent, mformed --- I .... 6 that theIr servIces would no longer be proVIded by the PsychIatnc HospItal, but an outsIde communIty proVIder At the staff meetlng held on May 2, 1996, there was further dIscussIOn. The mmutes of that meehng stated. Rumours are bemg crrculated m London, St. Thomas and other areas that our Agency has ceased takmg new referrals. Paul will send out a letter to pertment people m the Commuruty advIsmg them that It is busmess as usual and that the transItion WIll take place as smoothly as possible. Steps towards our derruse have already began. Judy Kerley, Helen Lowe, Paul and Arlene Pallarm, Mr Cunnmgham's plannmg officer have met to talk to C O.M.S 0 c., and the next steps to take. Talks were on the transItIon ofthts program m terms ofR.F.P., tmung, CollectIVe Agreement. There were far too many questions and not enough answers at tills meetmg. St. Thomas Psycluatnc Hospital has made It clear that they consIder staff at our Agency to be part of the HOSpItal, and will be treated m the same marmer as therr staff m the Hospital. They have certam obhgatIOns and responsibllItIes towards us and we will be treated accordIllg to the CollectIve Agreement. At the present tune, there are some bamers m the mterpretatIon m the CollectIve Agreement and Paul will keep us mformed as steps unfold. A tender will be publIshed near the end of June. We will know more m terms ofRFP at that tIme RepresentatIves from Queens Park, Human Resources and COMSOC will be meetIllg regarding the mterpretatIOn around the CollectIve Agreement, tmung and steps m the process. The date of April 1997 was given when the Agency will be m the hands of a Transfer Payment Program. Tills could happen sooner than April 1997 There was further dISCUSSIOn on the staff meetrng held on May 17, 1996, WIth an update to staff N otwlthstandrng the Mrnlstry's rntentIOn to send out the requests for proposals to find a commumty proVIder for the servIce rn the spnng of 1996, the actual proposal was not sent out until October 1996 The Board was prOVIded WIth a copy of the rnVItatlOn to submIt proposals The Umon noted that attached to the RFP was an appendIX that set out program Employee rnformatIOn. Amongst other data prOVIded, It was stated that there were seven Case Manager posIuons. Those posluons were broken down mto pOSItIOn one through seven and proVIded was mformauon regardIng the contlnuous servIce date, the semonty, the hourly wage and the type and cost of benefits for each of the seven Incumbents In the Case - 7 Managers posItIon. As mentIOned preVIously, on October 22, 1996, gnevor receIved a letter from Robert Cunmngham. It was thIs correspondence that the Employer suggested was sent to Ms BurdItt rn error and It stated the followrng Dear Ms BurdItt: Approval has now been receIved to ask for formal tenders from qualIfied bIdders for the full scope of our Adolescent and Children's ServIces. The tendenng process will begm munedIately Staff of the Ontano PublIc Service are ehgible to bId on the Contract. It IS anticIpated that the new ServIce ProVIder will be m place by April 1, 1997 The Mimstry of Health will ensure that reasonable efforts as outlmed m OPSEU's Collective Agreement Appendix 14, are taken to asSISt you m obtammg employment WIth the new ServIce PrOVIder I assure you that the terms and condItIOns of the OPSEU's CollectIve Agreement WIll be honoured at all tunes. ThIS news ma} be dtstressmg to you, For tlus reason, I will remmd you that confidentIal supports are available to you by contactmg the HospItal's Employee ASSIstance Program representatIves through the Employee Health ServIces at eIther SIte AlternatIvely, you may contact the external E.A.P Marnage and Family ASSOCIates office dIrectly at 663-9524 (toll free 1-800-263-6817) Paul Bourque will be available on a regular baSIS to address speclfie questIOns or concerns. AddttIonally, I encourage you to make an appomtment WIth the STPH Human Resources Office representatIve (ext. 2376) to discuss the optIons wInch are available to you WIth accordance WIth the CollectIve Agreement. We will work With you through thIS tranSItIon to ensure the best servIce for our patIents and to respond to your questIOns and concerns. There have been a number of references throughout to AppendIX 14 of the CollectIVe Agreement dealrng WIth Employment StabIlIty Under the new CollectIve Agreement, tills AppendIX IS found at AppendIX 9 The agreement of the pattIes IS qUIte lengthy ll1 tills regard and rncludes, amongst other prOVISIOns that. The Emplover WIll make reasonable efforts to cnsure that, where thcrc IS a dIspOSItIon or any other transfer of bargammg urut functIOns or Jobs to the prIvate or broader publIc sectors, cmployees m the bargammg unIt are offered pOSitIOns WIth the ne\v employer on terms and condttIOns that arc as close as possible to the then eXlstmg terms and condItIons of cmplovment of emplovces III the bargammg umt, and, where less than the full complement of employees IS - 8 offered positions, to ensure that offers are made on the baSIS of semonty When an employee has been transferred to a new employer he or she shall to be deemed to have resIgned and no other proViSIons of the Collective Agreement will apply except for the ArtIcle 53 or 78 (TerrmnatIOn Pay) It was the posloon of the Umon that as of the gnevor's request for converSIOn to claSSIfied status, that IS, rn April of 1996, there was an ongomg need for her work to be done After she filed her gnevance she was told that her converSIOn was not possible on the baSIS that she dId not meet the two year requIrement. There was no dIscussIOn of a lack of ongorng need for the work to be performed at that trme The Umon suggested that It IS eVIdent that there was an ongorng need for the work performed by the gnevor and that IS why, on October 2, 1996, she receIved the letter willch referred to the Employer makmg reasonable efforts to ensure that she would have ongorng work WIth the new commumty proVIder of the servIce However, two months after she receIved that letter, willch was never formally rescrnded by the Employer, she receIved SIxteen weeks nooce of her termrnatIOn. Ms Lawrence, for the Umon, argued that rn early Apnl of 1996, there was a presumpoon of a contmumg need for seven Case Managers Indeed, there contlnued to be a need for seven Case Managers, as can be seen by the RFP In that request for transfer It was stated that there were seven Case Managers and therr employment staostlcs were proVIded. The IdentIficatIOn of the seven pOSItIOns rn the RFP IS an rndlcatIOn by the Employer that there was an ongorng need for seven Case Workers to do the work. The mere fact that the work would soon be moved to a commumty servIce provIder does not, rn and of Itself, mean that there IS no ongorng need for the work. It IS eVIdent from the documents, that COMSOC made a commItment to fund the work of seven posloons of Case Manager The Umon submItted that If the penod subsequent to the gnevance can be uohzed by the Employer to assess ItS need, WhICh the Umon does not necessanly agree WIth, then It must be clear that --- 9 by October of 1996, the Employer knew that there was a contrnurng need for the posIoon. The only dIfference was that the Employer would be an outsIde proVIder Ms. Lawrence dIstmgUIshed thIs fact sItuatIOn from the two earher decISIOns regardrng the converSIOn of employees to classIfied status. In the rnstant case, the gnevor had not receIved a notlce of termmaoon pnor to the filrng of her gnevance unlike the gnevors rn the Sinnathurai or Sopha cases Ms Holmes, for the Employer, argued that the Issue for this Board IS to determme IS whether there was an ongorng need for the work to be performed and It was cleared that, as of Apnl, 1996, all case workers at the Adolescent Child ServIces were slated to be surplused. Indeed, It was clear and uneqUIvocal that It was the government's rntentlon to abohsh the program and have the servIce dehvered by the broader pubhc sector At VIrtually the same trme the gnevor requested converSIOn to classIfied status, the government was recommendrng the work be transferred from the pubhc sector The employees, rncludrng the gnevor, were told of these rntenoons While the documents rndIcated that the Employer rntended to send the RFP rn June of 1996, rn fact It was not ready for tender unol October of 1996 In the rntenm, there was work to be done and It was WIthm management's nghts to ask the gnevor to perform that work as an unclassIfied employee The Employer has the nght to aSSIgn the gnevor to work for the transloon penod. The Employer took the posloon that the Dmon wrongly charactenzed the hstrng of the seven Case Manager POSItIOns m the RFP The requests for proposals were completed rn accordance WIth the Collective Agreement willch states that the Employer wIll make reasonable efforts to ensure employment stabIhty for the employees ll1 the tendenng process - 10 It was With tlus obhgaoon rn mmd that the Employer set out all of the posItions and the total coshng of those posIoons m the request for proposals The tender was Issued rn the hope of findIng a new prOVIder It IS accurate that COMSOC will proVIde the fundrng for the servIce However, the tender was Issued for the purpose of receIVrng proposals from outsIde provIders. The Employer then reVIews and determmes willch proposal most closely resembles the status quo The fact that the Employer lIsted seven Case Managers posItions IS merely the result of ItS obhgaoons under the Collecove Agreement. Whde It IS accurate that COMSOC will conhnue to fund the program, that IS Adolescent and Cillldren' ServIces, It IS not correct that COMSOC wIll necessanly fund seven Case Managers pOSItIOns The RFP does not stand for the proposItion that seven people are reqUIred to be Case Mangers or that there IS an ongorng need for the gnevor's work. Therefore, the Employer argued, there was a wrndow of eIght months between when the gnevor asked for converSIon to classIfied status and when It became apparent that there was no ongorng need for her work to be performed. In Lynch-Burrus, the Board determmed that the reason for extendrng the contract of an unclaSSIfied employee was relevant rn the conslderaoon of ongorng-need. In the rnstant matter, there was a need for work to be done dUrIng a tranSItIOn penod. Tills Board has to balance the nght of the Employer to use unclaSSIfied employees to do work such as tills rntenm work durmg the tranSItIon penod agarnst the costs of convertrng employees WhICh would proVIde those rndIVIduals WIth enhanced severance and other CollectIve Agreement nghts at a sIgmficant cost to the Employer The Employer has the nght to uohse unclaSSIfied employees It was conceded that nght IS not unfettered and must be exercIsed rn good faIth. However, the Employer can appomt and re-appornt rndIVIduals to perform speCIfic work. When the Employer was asked by the Board how long work has to contmue before It IS conSIdered to be ongomg, It was suggested that the answer WIll be fact dependant. In the -.;.~ ~ / 11 mstant matter the gnevor knew VIrtually wIthm days of requesong converSIOn to classIfied status that her Job would have an end. She learned that the work would sillft to the broader pubhc semce and that her semces would be requrred dunng the transloon penod. However, It can not be found that there was an ongorng need for her work to be done At ItS illghest It could be SaId that there was a dIscrete penod dunng willch her semces would be requrred. In reply, Ms. Lawrence argued that the Dmon should not have to prove that the work wIll last forever Indeed, as of April 1996 the gnevor had been workrng as a Case Manager for three years. Smce her request for converSIOn to classIfied status she has contrnued to work almost an addItIOnal year It must be clear that there was an ongorng need for the work and the grtevor ought to be converted. DECISION Accordrng to the collectIve agreement, an unclassIfied employee must meet a two year reqUIrement to be enotled to request converSIOn to classIfied sefVlce In the event that employees meet the two year requIrement, willch IS not, as menooned earlIer, agreed rn the rnstant matter, converSIOn WIll take place subject to the requrrement that the "Mlillstry has determmed that there IS a contrnurng need for that work to be performed on a full-trme basIs" The Issue for tills Board to address IS whether there was a contlnurng need for the gnevor's work to be performed on a full-trme basIs The Employer argued that It knew shortly after the gnevor's request for converSIOn that there was no ongomg need for the work because all of the work of the bargarnrng umt was gomg to be transferred to a successful bIdder m the broader publIc semce Accordmgly, the gnevor was demed the converSIOn, It was suggested that m these cIrcumstances, that IS, where prIVatIzatIOn IS wlthrn the foreseeable future, there IS no ongomg need for the work as - / 12 consIdered rn artIcle 3 15 1 1 Further, rn such cIrcumstances, the Employer can extend an unclassIfied contract WithOut fear of havmg that extensIon mIsconstrued as a contlnumg need for the work. After consIderatIOn, I cannot agree WIth the Employer rn thIs matter In amvmg at my decIsIOn I found the mmutes of the staff meetmg of May of 1996 to be helpful and mformaove The staff meetlng was held approXImately one month after the gnevor asked to be converted. In those mmutes It was stated that the "date of Apnl1997 was gIVen when the Agency will be rn the hands of a Transfer Payment Program" The Employer hoped to Issue the requests for proposals rn the spnng of 1996 but, rn fact, the RFP was not Issued untIl months later, rn October of 1996 The staffmeetrng mmutes rnmcate that, rn all likelihood, at least a year would transpIre before there was a transfer of the busrness There was also menoon rn the staff meetlng mmutes of a letter to be sent lffiffiedlately advlsrng appropnate people rn the commumty that It "IS busrness as usual" In my VIew, at tills pornt the Employer knew or thought It likely that there would be a contlnurng need for the work of the gnevor to be done for at least the next eleven months. Indeed, the Employer conceded that the gnevor's work had to be done durmg rn the "tranSItIOn penod" Unclassmed employees must work for a two year penod pnor to requestlng converSIOn. Two years IS not an rnSlgmficant penod of orne In thIS case, the gnevor asked for converSIOn VIrtually upon retuffirng to work after the pubhc sector strike Shortly after her request, the Employer mformed staff that rn approXImately a year, the agency would probably be transferred to the broader pubhc servIce The affect of the Employer s posloon rn tills case IS that It can refuse to convert the gnevor to claSSIfied status and yet contmue to aSSIgn her to work as an unclassIfied employee for a penod of orne whIch IS approxImately equal to fifty percent of the tIme It took her to qualIfy for converSIOn In the first Instance I cannot - ,- 13 agree that merely because there was a known date or an approxIm'lte date for the work to be pnvatIzed, that there IS no "contInurng need" for the work. In tills case, It was thought that the work would be transferred to an outsIde servIce prOVIder III the broader publIc servIce a full year after the grlevor asked to be converted. In my VIew, a year IS sufficIent to find a "connnulllg need" for the work as consIdered III artIcle 3 15 lITo find otherwIse would Impose too harsh a restnctIon upon the applicatIOn of artlcle 3 15 1 1 The Employer urged that, at best, It could be saId that there was a dIscrete penod durmg willch the gnevor's semces were needed. I dIsagree There IS no proVISIOn rn the collectIVe agreement that consIders work performed for "dIscrete penods" Accordrng to arncle 3 15 1 1, there IS eIther a contlnurng need or there IS not, and, rn thIs rnstance, I am of the VIew that there was. The mere fact that the Employer knew that the gnevor's Job would have an end IS not sufficIent reason, ill and of Itself, for a frndrng that there IS no contrnurng need for the work. Arguably If that were the case, rn those rnstances where the Employer knows that pnvatlzaoon will occur rn two or three years tlme, unclassIfied employees would be dIsallowed converSIOn. WhIle that mIght seem like an extreme example, It Illustrates what I frnd to be the weakness rn the Employer's posItIOn. The Employer submItted that thIs Board must balance the nghts of the Employer to use unclassIfied employees to work dunng llltenm or tranSItIOnal pen ods and the nghts of employees agamst the illgh cost rnvolved rn the converSIOn of employees to claSSIfied status I agree that the Employer has the nght to appornt and re-appornt employees to do specIfic work. However, those nghts are somewhat restncted III the case of unclassIfied employees who have met the cntena set out rn artIcle 3 15 1 1 I apprecIate that the costs rnvolved rn convertmg an employee to claSSIfied status are not rnSlgmficant. However, for my purposes, those costs are not a relevant conSIderatIOn In arrlVmg at my determmatIOn. - . - 14 The Umon rehed heavIly upon the letter of October 2, 1996, letter WhICh was sent to the gnevor The Employer submItted that It was sent to some unclassIfied employees ll1 error The fact that the letter was sent IS not determmauve In thIS matter I was asked to address the matter of "contlnumg need" rn the context of the gnevance ofMs Burdttt. However, there remams the Issue of whether she met the cntena of havmg worked rn an unclassIfied posluon rn accordance WIth the proVISIOns set out rn arncle 3 15 1 1 I am therefore not rn a posluon to uphold or dISmISS the gnevance Accordrngly, I remarn seIzed of tills matter as requested by the parnes Fehclty D Bng S Vice Charr