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HomeMy WebLinkAbout2000-1252.Union Grievance.01-02-12 Decision o NTARI 0 EMPLOYES DE LA COL'RONNE CROWN EMPLOYEES DE L "ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1252/00 OPSEU#OOU 148 OOU 149 OOU 150 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Gnevor - and - The Crown m RIght of Ontano (Mimsm of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE RIchard Brown V Ice Chair FOR THE DavId Wnght, Counsel GRlEVOR Ryder Wnght, BlaIr & Doyle BarrIsters and SolIcItors FOR THE Len M~ Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING Januan 22,2001,Febru~ 5 2001 Tins IS the second decIsIOn on a umon pohcy grIevance arIsmg out of the Impendmg opemng of the Central North CorrectIOnal Centre (CNCC) m Penetangmshene The government has Issued a request for proposals (RFP) to find a pnvate-sector entIty to operate thIS new facihty Except as noted below, all employees at each of four mstItutIOns, now operated by the Mimstry of SohcItor General and CorrectIOnal ServIces, have receIved notIces mformmg them that theIr Jobs will be mcluded m the RFP The four facihtIes are (1) Bame Jail, (2) Parry Sound Jail, (3) Burtch CorrectIOnal Centre m Brantford, and (4) Guelph CorrectIOnal Centre The umon contends the hst of employees attached to the RFP mcludes some who should have been excluded. The hst IS also said to exclude other employees who should have been mcluded. These Issues are addressed m thIS decIsIOn. Another decIsIOn, dated Febnmry 8, 2001, deals wIth the apphcatIOn of AppendIx 13 to employees whose work will be pnvatIzed at the SaIne tIme as It IS moved to CNCC There remams to be consIdered the apphcatIOn of AppendIx 13 to employees actmg as commumty escorts whose work will be moved to CNCC approxImately one year before It IS transferred to the pnvate sector I The constnlctIOn and planned pnvatIzatIOn of CNCC IS part of an ongomg transformatIOn of correctIOnal servIces for adult Inmates m southern Ontano In the old system bemg phased out, SIX correctIOnal centres house sentenced male Inmates, excludmg those m need of pSYChiatrIC or psychologIcal assessment or treatment. Burtch and Guelph are two of these centres The remaInmg four are Maplehurst CorrectIOnal Centre, MimIco CorrectIOnal 2 Centre, Millbrook CorrectIOnal Centre, and Rideau CorrectIOnal Centre Each of these facihtIes IS classIfied as mImmmn, medIum or maXimum securIty Burtch IS the only mstItutIOn wIth mmnnmn secunty and Millbrook the only one With maxnnum secunty There IS more than one medIum secunty facihty The detennmatIOn of where a partIcular Imnate serves Ins sentence IS based pnmarily upon the level of nsk he poses In cases where more than one facihty offers an adequate level of secunty, geography plays a role m the Mimstry's decIsIOn about where to send an Imnate In the new system bemg put m place, sentenced males not reqmnng assessment or treatment will be housed at three large mstItutIOns CNCC m the western regIOn, Maplehurst CorrectIOnal Centre bemg reconstructed m the central regIOn, and Central East CorrectIOnal Centre (CECC) bemg built m the eastern regIOn. CNCC IS to be pnvatIzed but Maplehurst and CECC will be operated by the MinIStry As each of the new facihtIes will offer all three levels of secunty, the matchmg of Inmates WIth mstrtutIOns will not be determmed by nsk. Instead, an Inmate typIcally will be assIgned to the centre located m the regIOn where he was sentenced. In the old system, male Inmates m southern Ontano needmg assessment and treatment were assIgned to one of four locatIOns mcludmg the Guelph Assessment and Treatment Umt (GA TU) The new system will house all such mmates m a new facilIty at Brockville VanIer Centre for Women IS the only eXIstmg correctIOnal centre wIth female Inmates It IS classIfied as mImmum/medmm secunty Accordmg to the Mimstry's manual for the classIficatIOn of adult offenders, sentenced females requffing maxImum secunty have been held m Jails or detentIOn centres CNCC and CECC each will house 34 females mcludmg both 3 sentenced and remanded Imnates There will be a much larger populatIOn of females at Maplehurst II CNCC IS expected to open ItS doors m the summer of 2001 Accordmg to Jolm O'Bnen, DIrector of TransItIOn Planmng for the Mimstry, there will be a "raInp-up" penod of SIX to mne months Dunng tlns tune, tlle new facilIty will receIve all remanded Imnates at Barry Jail and Parry Sound Jail These two Jails will close when tlns transfer IS complete Thereafter, CNCC will servIce the SaIne courts as prevIOusly were servIced by Bame and Parry Sound. Also dlmng the "raInp -up" penod, the new facihty will receIve all sentenced Inmates at Burtch, except those servmg mtermIttent sentences, and all sentenced Inmates at Guelph, except for those m GATU Guelph and Burtch will close when tills transfer IS complete All offenders sentenced m the western regIOn, after the opemng of CNCC, will be sent there When Guelph closes, GA TU Inmates will be transferred to a temporary locatIOn at Wellmgton DetentIOn Centre, pendmg the completIOn of the new facihty m Brockville No Guelph employees were assIgned exclusIvely to GATU until recently In preparatIOn for the Issuance of the RFP, the employer desIgnated 61 posItIOns as bemg attached to GATU and excluded them from the RFP Employees were mVIted to apply for these posItIOns and assIgnments were made on the basIs of semonty Also excluded from the RFP are the posItIOns held by seven mdustnal officers and one clerk attached to the Trilcor pro graIn at Guelph. Inmates partIcIpatmg m the Trilcor prograIn produce Items for sale to outsIde purchasers These Inmates wIll be transferred to CNCC when Guelph closes, 4 but the Tnlcor pro grain will be moved to some not yet detennmed locatIOn WItllln the Mimstry With the exceptIOn of tllese Trilcor and GA TU employees, the RFP mcludes all members of the bargaInllig umt at tlle four desIgnated mstItutIOns It does not mclude anyone workmg elsewhere The total number of Imnates held at the four closmg facihtIes IS less than the number CNCC will be able to hold. The number of remanded Imnates held at Bame and Parry Sound combmed IS approxImately the Saine as the number of beds m the remand pod bemg built at CNCC However, CNCC will be able to hold far more sentenced llimates than the number slated for transfer there from Guelph and Burtch. There will be 960 beds m the five pods for sentenced Inmates at the new correctIOnal centre Excludmg GATU Inmates and those at Burtch With mtermIttent sentences, the average Inmate count at the two closmg facihtIes IS 549 for the current fiscal year The maximum count IS 715 The number of employees at CNCC will be less than the number employed at the mstItutIOns slated to close For eXaInple, these mstItutIOns have a complement of 80 m the classIficatIOn of correctIOnal officer 1 and a complement of 382 m the classIficatIOn of correctIOnal officer 2, for a total of 462, whereas the staffing model for CNCC predIcts a workforce With 207 correctIOnal officers III The umon challenges the mclusIOn of some employees on the hst attached to the RFP and the exclusIOn of others The umon claims each of the dIsputed 5 mclusIOns and exclusIOns amounts to a vIOlatIOn of artIcle 6C 1 of AppendIx 18 to the collectIve agreement That artIcle states In respect of the transfer ofbargammg umt functIOns or Jobs, the employees that the employer detennmes will be mcluded m the Request for Proposals (RFP) will be notIfied not less than ten (10) workmg days pnor to the release of the RFP that theIr Jobs will be mcluded m the RFP and provIded the opportumty to elect m wntmg, WIthm five (5) workmg days of bemg notIfied, not to be mcluded m the RFP In default of the electIOn, the employee IS deemed to be mcluded m the RFP In the course of argument, I was also referred to the followmg artIcle s m AppendIx 18 8.2 When the Employer releases a tender under Schedule A or C, the Employer agrees that OPSEU will be provIded wIth a copy of the RFP that the Mimstry has released. If OPSEU beheves that the tender IS not m comphance WIth eIther ArtIcle 5 or ArtIcle 6C 0 as appropnate, OPSEU may refer the matter to arbItratIOn/mernatIOn and the matter must be resolved 15 days prlOr to the closzng of the tender (emphasIs added) 8 4 1 The PartIes agree that the detennmatIOn of the method and/or manner and the quantIty and tunmg of the transfer of any servIce to a servIce proVIder other than the Crown IS at the dIscretIOn of the Employer and shall be deemed to be m accordance With ArtIcle 2 1 of the CollectIve Agreement ArtIcle 2 1 of the collectIve agreement IS the management nghts clause Umon counsel conceded artIcle 8 4 1 gIves the employer a "free hand" to detennme whIch servIces are to be transferred to the pnvate sector Accordmg to tlus hne of argument, havmg decIded upon the scope of servIces bemg transferred, the employer IS obhged by artIcle 6C 1 to correctly IdentIfy the Jobs or functIOns attached to those servIces Counsel asserted the employer has no nght to name an employee m an RFP when Ins 6 or her work will remam m the pubhc servIce In support of tlns mterpretatIOn of artIcle 6C 1, I was remmded the phrase "employees that the employer detennmes will be mcluded" IS modIfied by the precedmg words "m respect of the transfer of bargammg umt functIOns or Jobs" Counsel also noted artIcle 6C 1, unlike artIcle 8 4 1, does not deem the employer's decIsIOn to be m accordance wIth the collectIve agreement In short, umon counsel contended I should apply a standard of "correctness" m revIewmg the hst of employees mcluded m the RFP, With one exceptIOn. The exceptIOn IS where the number of employees m a classIficatIOn exceeds the number reqmred to perform the work bemg transferred. In thIS context, counsel for the umon conceded artIcle 6C 1 grants the employer the dIscretIOn to decIde who will be hsted on the RFP For eXaInple, havmg decIded not to pnvatIze GATU, the employer had to determme who would remain wIth GATU and who would be hsted on the RFP, gIven that no-one had been assIgned exclusIvely to GATU m the past. A number of posItIOns were desIgnated as attached to GATU and assIgned to quahfied apphcants m order of semonty Counsel for the umon suggested thIS was the only proper way for the employer to exerCIse ItS dIscretIOn. Employer counsel contended artIcle 6C 1, read m conJunctIOn wIth artIcle 8 4 1, confers upon management complete dIscretIOn to determme who will be mcluded on the RFP To estabhsh a vIOlatIOn of the collectIve agreement, said counsel, the umon must prove that the employer has acted m a manner that IS arbItrary, rnscnmmatory or m bad faith, or that It'S decIsIOn IS not based upon legItImate governmental purposes I was urged to conclude the time hmIt ill artIcle 8.2 mrncates the facilItatIOn of an eXperntIOuS transfer 7 IS a legItImate obJectIve Counsel also asserted the collectIve agreement does not mandate the use of semonty m detennmmg who to naIne m an RFP IV Each of the contested mclusIOns and exclusIOns IS set out below In addressmg these matters, I have not found It necessary to choose between the standard of arbItral reVIew advanced by the umon and the one proposed by the employer ExclusIOn of PosItIOns at Maplehurst. MimIco. Millbrook and Rideau Attributable to Imnates Sentenced m the Western RegIOn The umon contended some of the employees at Maplehurst, MimIco, Millbrook and Rideau should have been mcluded on the RFP because some Imnates at these facihtIes have been drawn from the western regIOn. For eXaInple, Mr O'Bnen estImated one-tlnrd of Millbrook's Imnates have come from the western regIOn. The unIOn argued one-tlnrd of the work perfonned at Millbrook has been to servIce Imnates from western Ontano and tlns part will be transferred to CNCC Accordmg to tlns hne of argument, one-tlurd of Millbrook employees should have been mcluded on the RFP No eVIdence has yet been led as to how many offenders, sentenced m the western regIOn, have been sent to Maplehurst, MimIco or Rideau. To the extent these mstItutIOns have drawn Inmates from the western regIOn, the umon rehed upon an argument analogous to the one made about Millbrook. The tacIt premIse underlymg tills argument IS that the determmatIOn of whether work will be transferred between two facihtIes should be made by comparmg the types of Inmates held at one m the past wIth the types to be 8 held at the other m the future As Imnates of a type who have been sent to Millbrook, those sentenced m the western regIOn and held m a maXlmum- secunty settmg, will go to CNCC, the umon argued part of Millbrook' s work will be transferred to CNCC When umon counsel spoke of work bemg transferred, I understood hun to mean a transfer of "bargammg unIt functIOns or Jobs" under artIcle 6C 1 An alternatIve approach to decIdmg whether "bargaImng unIt functIOns or Jobs" will be transferred from one facIhty to another IS to ask whether any Imnates actually will move between the two Most of the sentenced Imnates held at the four desIgnated facihtIes will be transferred to CNCC when It opens None of the Inmates held at Millbrook will go to CNCC All of them will be transferred to CECC whIch IS scheduled to open at a later date Applymg the alternatIve approach to these facts, one would conclude "bargaImng lIDIt functIOns or Jobs" will not be transferred from Millbrook to CNCC Management's decIsIOn to exclude Millbrook employees from the RFP IS consIstent WIth thIS way of IdentIfymg a transfer between two facilItIes Counsel for the employer noted the approach advocated by the umon would result m employees leavmg Millbrook and bemg replaced there by others Accordmg to the umon's proposal, one-thIrd of Millbrook employees would be hsted on the RFP, and they would cease workmg at Millbrook when CNCC opens As none of the Inmates held there will be transferred to CNCC, Millbrook employees hsted on the RFP would have to be replaced. Umon counsel conceded thIS would occur When the partIes to the collectIve agreement negotIated artIcle 6C 1, dId they mtend that posItIOns vacated by employees hsted on an RFP would 9 be filled by others? The answer IS almost certamly not The reason for hstmg employees on an RFP IS that they have been rendered redundant by the transfer of servIces to the pnvate sector By defimtIOn, redundant emp loyees need not be replaced. Tins analysIs leads me to conclude artIcle 6C 1 does not reqmre the employer to use the approach advocated by the umon. Even If the standard of arbItral reVIew IS one of "correctness", I would conclude the employer lid not VIolate artIcle 6C 1 by excludmg Millbrook employees from the RFP The exclusIOn of Millbrook employees IS mdIstmgmshable from the exclusIOn of those at Maplehurst and Rideau, because the eVIdence mdIcates none of the Inmates held at eIther of these facihtIes will be sent to CNCC Inmates at Maplehurst will remain there after that facilIty IS reconstructed. Those at Rideau will be transferred to CECC when It opens Insofar as Millbrook, Maplehurst and Rideau are concerned, thIS part of the gnevance IS dIsmIssed. As emphasIzed by umon COlIDSel, the total number of sentenced males at Burtch and Guelph falls far short of the number CNCC will be able to hold. Do these number suggest that Inmates hvmg at other mstItutIOns will be sent to CNCC? In thIS regard, I note Mr O'Bnen testIfied that MimIco will close, but there IS no eVIdence as to where the Inmates hVIng there will go If they are slated for transfer to CNCC and the umon Wishes to pursue thIS matter, I remain seIzed to determme whether the employer acted properly m excludmg MimIco employees from the RFP InclusIOn of PosItIOns at Guelph and Burtch Attributable to Inmates Sentenced outsIde the Western RegIOn 10 The umon contended some employees at Burtch and Guelph should not have been mcluded on the RFP, because some of the mmates at these two facihtIes have been drawn from the central and eastern regIOns Mr O'Bnen estImated 20% of Burtch Imnates servmg straight sentences have come from outsIde the western regIOn as have 50% of the Imnates at Guelph. The umon argued the same percentage of the work perfonned at Burtch and Guelph respectIvely has been to servIce Imnates from outsIde western OntarIO and tlns part will not be transferred to CNCC Accordmg to tlns hne of argument, the correspondmg percentage of employees at the two closmg facihtIes should not have been mcluded m the RFP ThIS argument IS analogous to the one advanced about the exclusIOn of employees at Millbrook. Both rest upon the tacIt premIse that the determmatIOn of whether "bargammg lmIt Jobs or fi.mctIOns" will be transferred between two facihtIes should be made by companng the types of Inmates at the two locatIOns As Inmates of a type who have been sent to Guelph and Burtch m the past, those sentencro outsIde the western regIOn whose secunty needs could be met by one of these mstItutIOns, will not be sent to CNCC m the fi.lture, the umon claimed the work associated wIth thIS type of Inmate will not be transferred to the new facihty The other way to determme whether "bargaImng lmIt fi.mctIOns or Jobs" will be transferred from one facIhty to another IS to focus on the movement of Inmates between the two With the exceptIOn of GA TU Inmates at Guelph and those servmg mtermIttent sentences at Burtch, all mmates at these two mstItutIOns will be transferred to CNCC when It opens Accordmg to the umon's proposal, the percentage of Inmates at Guelph and Burtch who Will transfer to CNCC would far exceed the 11 percentage of employees mcluded m the RFP at these two mstItutIOns ConsIder, for eXaInple, the sItuatIOn of correctIOnal officers at Guelph excludmg GATU The umon proposed that only 50% of correctIOnal officers be mcluded m the RFP, even though all Imnates will be sent to CNCC The employees excluded from the RFP would no longer be needed at the Guelph facIhty They would have been rendered surplus at that locatIOn by the transfer of mmates to CNCC In other words, the 50% of employees excluded from the RFP would become redundant as a result of the transfer of Imnates to CNCC, even though the exclusIOn of these employees would rest upon the premIse that the correspondmg 50% of "bargammg umt functIOns or Jobs" was not bemg transferred to the new mstItutIOn. ThIS analysIs demonstrates the flaw ill the umon's mterpretatIOn of "bargaImng umt flIDctIOns or Jobs" When the partIes to the collectIve agreement negotIated artIcle 6C 1, I doubt very much they mtended to exclude from an RFP employees who are rendered surplus by a transfer of servIces to the pnvate sector Even If the standard of arbItral reVIew IS one of "correctness", I would conclude the employer dId not vIOlate artIcle 6C 1 by not excludmg 50% of Guelph employees from the RFP The sItuatIOn at Burtch IS analogous to that at Guelph. ThIS part of the grIevance IS dIsmIssed. InclusIOn of PosItIOns Attributable to Inmates Servmg IntermIttent Sentences at Burtch The umon contended 30% of Burtch employees m certain classIficatIOns, those mvolved wIth Imnates servmg "mtennIttent" sentences, should not have been mcluded m the RFP, because Imnates of tlns sort will not be transferred 12 to CNCC The percentage of Imnate-days at Burtch attributable to mtennIttent sentences was 21 % m fiscal year 1999-2000 and rose to 30% 111 the first mne months of the current fiscal year As noted by counsel for the umon, the eVIdence does not reveal any reason for the employer's decIsIOn to treat employees workmg wIth Burtch Imnates servmg mtennIttent sentences dIfferently than employees workmg wIth GATU Imnates NeIther category of Imnate will be transferred to CNCC At Guelph, the employer desIgnated a number of GATU posItIOns, mVIted quahfied employees to apply for them, made assIgnments on the basIs of semonty, and excluded the successful apphcants from the RFP In my VIew, the employer's decIsIOn not to treat Burtch employees m an analogous fashIOn, a decIsIOn for whIch the eVIdence dIscloses no legItImate reason, was arbItrary ThIS part of the gnevance IS allowed. The employer IS dIrected to aInend the hst of employees attached to the RFP by applymg a procedure analogous to the one used for GA TU InclusIOn of Some Food-ServIce PosItIOns at Burtch. Guelph. Bame and Pany Sound The umon contended 55% of the food-servIce employees at each of the four desIgnated facIlItIes should have been excluded from the RFP because only 45% of the food consumed at the new correctIOnal centre will be prepared there The RFP for CNCC reqUIres the successful bIdder to acqUIre 55% of "daily food reqUIrements" from the cook-chill centre bemg built at Maplehurst (page 16) Mr O'Bnen testIfied the employer hsted all food- 13 servIce employees on the RFP because tlus was the "most straight forward" approach. No further elaboratIOn of the basIs for management's decIsIOn was provIded. The umon claimed 55% of food-servIce employees belong on the RFP for the cook-clull centre and not on the RFP for CNCC The sItuatIOn of food-servIce workers IS analogous to the sItuatIOn of Guelph employees wIth respect to GATU Just as the work associated With some Guelph Imnates, those at GATU, Will not be transferred to CNCC, the work entailed m the preparatIOn of 55% of food Items will not move there In the case of GATU, the fact some work would not move to CNCC resulted m some employees bemg excluded from the RFP Yet no food-servIce workers were excluded from the RFP because some food preparatIOn will move to the cook-chIll operatIOn and not to CNCC As the eVIdence does not dIsclose a legitImate reason for such dIfferentIal treatment, I conclude It was arbItrary ThIS part of the gnevance IS allowed. The employer IS dIrected to aInend the hst of employees attached to the RFP by applymg a procedure analogous to the one management used for GA TU InclusIOn of PosItIOns Attributable to Inmates PartIcIpatmg m Trilcor at Guelph The umon contended a percentage of employees at Guelph should not have been mcluded m the RFP because the Trilcor prograInIS not bemg transferred to CNCC The Tnlcor prograIn now located at Guelph Will contmue to be operated by the Mimstry at some other locatIOn. The eVIdence does not reveal how many Inmates at Guelph partIcIpate m Trilcor Whatever the percentage, the umon argued the SaIne percentage of employees should have been excluded from the RFP 14 Unlike both GA TU pnsoners and offenders servmg mtennIttent sentences at Burtch, Trilcor Imnates at Guelph will be transferred to CNCC ThIS dIstmctIOn leads me to conclude the employer was not obhged to desIgnate Trilcor posItIOns and fill them wIth employees who have not worked exclusIvely m the Trilcor prograIn, such as correctIOnal officers Even If the standard of arbItral reVIew IS "correctness", the employer would not have vIOlated artIcle 6C 1 m detennmmg the work such employees perfonn m relatIOn to Trilcor Imnates hvmg at Guelph will move to CNCC when they are transferred there Employees who have worked exclusIvely m the Trilcor prograIn, the mdustrIaI officers and clerk, were excluded from the RFP, because the employer wIshed to retam theIr specIalIzed skills and expenence for use at a new locatIOn. ThIS was a legItImate reason for treatmg them rnfferently than most of the staff at Guelph who were mcluded on the RFP, as counsel for the employer argued. ThIS part of the grIevance IS dIsmIssed. ExclusIOn of PosItIOns Attributable to Female Inmates Transfemng to CNCC The umon contended the RFP should have mcluded some employees at facihtIes from whIch women will be transferred to CNN, wIth the specIfic number to be calculated accordmg to the "appropnate ratIO" The female umt at CNCC will hold 34 mmates and the RFP says It will be filled dlmng the first phase of the "raInp-up" penod. Parry Sound has held remanded women appearmg before the local courts Sentenced females have not been held at Burtch or Guelph. Those reqUInng mmImum or mernum secunty have been 15 held at Vamer and those reqmnng maxunmn secunty have been held at vanous Jails and detentIOn centres The eVIdence does not reveal how many women will transfer to CNCC from what facihtIes In some ways, the sItuatIOn of employees at facihtIes from whIch sentenced females are slated for transfer to CNCC IS analogous to the sItuatIOn at Guelph With GATU In recogmtIOn ofthe fact that some Guelph Imnates would be gomg to CNCC and some would not, management dIvIded the workforce mto two groups One group was treated as attached to GA TU Imnates and excluded from the RFP The other group was treated as attached to the Inmates bemg transferred to CNCC and mcluded m the RFP The umon advocates sImilar treatment for employees workIng at the facihtIes where women slated for transfer to CNCC now resIde There may be one dIfference between these mstItutIOns and Guelph. Guelph Will close when CNCC opens VanIer Centre for Women IS also scheduled to close but the eVIdence does not mdIcate when. There IS no eVIdence about the fate of any Jails and detentIOn centres from whIch women will be transferred to CNCC If any of these facihtIes contmues to operate after the transfer of Inmates to CNCC IS complete, and If the Inmates sent to the new facihty are replaced by others, employees mcluded on the RFP would have to be replaced also ThIS Issue should not be decIded m the abstract wIthout more mformatIOn about the mstItutIOns mvolved. I remam seIzed to address the matter If the lIDIOn elects to pursue It. InclusIOn of Launchy Officers at Burtch and Guelph 16 The umon contended the RFP should not have mcluded laundry officers at Burtch and Guelph. The RFP for CNCC reqUIres the successful bIdder to provIde laundry servIces, but allows It to decIde whether to operate Its own laundry or to contract out tlns work. In other words, there IS uncertamty as to whether employees of the receIvmg employer will perfonn the type of work now bemg done by laundry officers ArtIcle 6C 1 speaks of "the transfer of bargammg umt functIOns or Jobs" From the umon's perspectIve, the 'jobs" of laundry officers are not bemg transferred because the successful bIdder may contract out tlns work. The umon sees no dIstmctIOn between 'jobs" and "functIOns" but the employer does From the employer's perspectIve, the "functIOn" of provIdmg laundry servIces to Inmates will be transferred from the pubhc servIce to the successful bIdder, who then will assIgn the work eIther to ItS own employees or to an outsIde contractor The language of artIcle 6C 1 favours the employer's mterpretatIOn to some degree By refemng to both "functIOns" and 'jobs", thIS artIcle suggests these two words do not mean the SaIne thmg The dIsJunctIve "or" between them mdIcates the transfer of "functIOns" performed by employees, wIthout the transfer of theIr 'jobs", warrants theIr mclusIOn on an RFP The employer's mterpretatIOn also IS more consIstent With the general structure of artIcle 6C 1 Before an RFP IS Issued, the Mimstry IS reqUIred to IdentIfy the employees who will be mcluded m the RFP and to notIfy them of theIr mclusIOn. After the Issuance of the RFP, the successful bIdder may decIde to contract out some work, to use technology reqUInng dIfferent skills than were utihzed m the pubhc servIce, or to dIstribute dutIes aInong employees m dIfferent ways If any of these thmgs happen, the receIvmg 17 employer will not offer all of the same types of Jobs as eXIsted m the pubhc servIce Some Jobs may change only shghtly, others may change dramatIcally, and still others may be elunmated entIrely At the tune employees are named for mclusIOn m an RFP, there will always be some uncertamty as to whIch pubhc servIce Jobs will be rephcated, to what extent, m the new employer's workplace When the partIes negotIated artIcle 6C 1, I very much doubt they mtended that the detennmatIOn of who to hst on an RFP would depend upon dungs whIch could not be known wIth any substantIal degree certainty at the tune the RFP IS Issued. The analysIs leads me to adopt the employer's mterpretatIOn. The "functIOn" of provIdmg laundry servIces Will be transferred from the pubhc servIce to the successful bIdder, regardless of whether thIS work IS contracted out. I conclude the laundry officers were properly mcluded on the RFP, even If the apphcable standard of arbItral reVIew IS one of "correctness" My mterpretatIOn will not place laundry officers at any dIsadvantage m secunng employment when compared With employees whose Jobs are rephcated by the new employer ArtIcle 6C 3 reqmres the successful bIdder to offer all Jobs resultmg from the transfer to employees hsted on the RFP, and If there are not enough Jobs for all, to make offers on the basIs of semonty Whether the laundry officers receIve a Job offer will depend upon theIr relatIve semonty and the total number of Jobs created by the receIVmg employer, not upon whether theIr current Jobs are rephcated m the new workplace ThIS part of the grIevance IS dIsmIssed. 18 InclusIOn of Industnal Officers AssIgned to Burtch Trilcor ProgfaIn and Guelph Repair Shops The umon contended the RFP should not have mcluded eIther the mdustnal officer assIgned to the Tnlcor book recychng pro grain at Burtch or the mdustnal officers m charge of the three repair shops at Guelph. the auto- body shop, the small-engme shop, and the upholstery shop All of these employees are engaged m prograIns desIgned to provIde Imnates wIth productIve work m order to facIhtate theIr rehabIhtatIOn. The RFP for CNCC reqmres the successful bIdder to provIde a "correctIOnal mdustnes prograIn", whIch "may mvolve more than one dIstmct busmess", With a rate of partIcIpatIOn that IS "consIstent WIth or exceeds the current partIcIpatIOn levels" (page 18) The sItuatIOn of these mdustnal officers IS analogous to the sItuatIOn of laundry officers at the same two mstItutIOns The "functIOn" of provIdmg mdustnal prograIns will be transferred to the successful bIdder who IS reqmred to provIde a prograIn of tlns sort Pendmg a detennmatIOn of the exact type of program to be offered, there IS uncertamty as to whether the current Jobs of the mdustnal officers will be rephcated m the new workplace Nonetheless, for the reasons stated above, I conclude they were properly mcluded on the RFP There IS no eVIdence that the MinIStry plans to relocate the Trilcor book recychng program wItlnn the pubhc servIce Accordmgly, I see notlnng arbItrary m management's decIsIOn to hst on the RFP the officer mvolved m tlns prograIn, while excludmg Guelph Trilcor staff whose work IS bemg moved to anotller locatIOn m the MinIStry Tins part of the grIevance IS dIsmIssed. 19 InclusIOn of ShIft Engmeers at Burtch and Guelph The umon contended the RFP should not have mcluded ShIft engmeers who operate the steaIn plants at Burtch and Guelph. The proposed staffing model for CNCC does not mclude any smft engmeers Asked If thIS omISSIOn mrncates there will not be a steaIn plant at CNCC, Mr O'Bnen said he assumed so If thIS assumptIOn IS correct, the Jobs of ShIft engmeers defimtely will not be rephcated by the receIvmg employer Even m thIS scenarIO, the collectIve agreement would not reqmre that the ShIft engmeers be excluded from the RFP The functIOn of provIdmg heat will be transferred to the successful bIdder While the ShIft engmeers will not contmue m theIr old Job With the new employer, the SaIne may turn out to be true for the laundry officers and mdustnal officers There IS nothmg m artIcle 6C 1 to support dIfferentIal treatment of an employee whose Job will not be rephcated, where thIS IS known from the outset, and an employee whose Job turns out not to be rephcated, where ImtIally there was some lIDcertamty ThIS part of the grIevance IS dIsmIssed. InclusIOn of PosItIOns Attributable to Commumty Escort Work at Burtch, Guelph. Bame and Pany Sound The umon contended a percentage of correctIOnal officers at each of the four desIgnated facihtIes should not have been mcluded m the RFP, because commumty escort work at CNCC must be performed by members of the bargammg umt, until July 18, 2002, as reqmred by a decIsIOn of the Labour RelatIOns Board, dated December 21, 2000 The eVIdence does not estabhsh 20 how many escort posItIOns will eXIst at CNCC The umon submItted the total number of such posItIOns should be dIvIded aInong the four desIgnated facIlItIes based upon the number of beds bemg transferred to CNCC from each mstItutIOn. Employer counsel conceded the escort work will not be pnvatIzed until July 18,2002, approxImately one year after CNCC opens, Nonetheless, counsel argued tlns delay IS analogous to the "raInp -up" of other work, whereby some staff will remam at closmg facihtIes until SIX to nme montlls after CNCC opens, at whIch tune they will begm workIng for the pnvate- sector employer Regardless of the standard of arbItral revIew, I find thIS argument persuasIve and see no reason why the escort posItIOns should not have been mcluded m the RFP ThIS part of the grIevance IS dIsmIssed. V Tins award dIrects the employer to aInend the RFP by excludmg some food- servIce employees and some employees workmg wIth Burtch Imnates servmg mtennIttent sentences I rem am seIzed to address any Issues of unplementatIOn ansmg from tlns dIrectIOn. I also remam seIzed of Issues relatmg to MimIco employees and employees at facihtIes from wmch female Inmates will be transferred to CNCC Accordmg to artIcle 8.2, all of these matters "must be resolved 15 days pnor to the closmg of the tender" The RFP for CNCC will close on March 9, 2001 I have refrained from ordenng the employer to Issue a new RFP, as requested by counsel for the umon. Counsel submItted artIcle 6C 1 reqmres 21 that a second RFP be Issued at least ten days after the employer gIves notIce to the employees properly mcluded m the revIsed RFP At tlns stage, the amendments ordered will delete some names hsted on the ongmal RFP but will not add tlle naInes of any addItIonal employees who dId not receIve notIce of the first RFP At least m these cIrcumstances, the tune hmIt m artIcle 8.2 precludes an order reqmnng the Issuance of a new RFP Dated at Toronto, tlns Ith day of February, 2001 Richard Brown, VIce-Charr 22