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HomeMy WebLinkAbout2000-1790.OToole et al.03-03-26 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#1790/00.0111/01 0113/01 0486/01 0575/01 0576/01 0635/01 0636/01 0714/01 0724/01 1128/01 1497/01 1522/01 1848/01 1861/01 0330/02 0331/02 0336/02 0345/02 0366/02 0367/02 1358/02 UNION#01A351 01A352 01A353 01A354 01A355 01A356 01A357 01A358 01A359. 01A360. 01A361 01A418 01A420.01A672 Om023 Om024 01A716 01A717 01A772 01A784 01C827 01C828 01C829. 01C830. 02A051 02A095 02C200.02C201 02C202 02C493 02C502 02C489.02C503 02C487 02C491 02C496 02C497 02C490. 02C504 02C492 02C494 02C495 02D280 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (O'Toole et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE FelIcIty Bnggs Vice-Chair FOR THE UNION Scott Andrews Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER DIane Cotton Staff RelatIOns Officer Mimstry of PublIc Safety and Secunty HEARING July 12 and September 19 2002 2 DECISION In September of 1996 the MInIstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provIncial correctIOnal InstItutIOns that theIr facIlItIes would be closed and/or restnlctured over the next few years On June 6, 2000 and June 29, 2000 the Umon filed pohcy and IndIVIdual gnevances that alleged varIOUS breaches of the collectIve agreement IncludIng artIcle 6 and artIcle 31 15 as well as gnevances relatIng to the filhng of correctIOnal officer posItIOns In response to these gnevances the partIes entered Into dIscussIOns and ultImately agreed upon two Memoranda of Settlement concernIng the apphcatIOn of the collectIve agreement dunng the "first phase of the MInIstry's transItIOn" One memorandum, dated May 3, 2000 (hereInafter to as "MERe I" (MInIstry Employment RelatIOns CommIttee)) outhned condItIons for the correctIOnal officers wlule the second, dated July 19, 2001 (hereInafter referred to as "MERe 2") provIded for the non-correctIOnal officer staff Both agreements were subject to ratIficatIOn by respectIve prIncIples and settled all of the gnevances IdentIfied In the related MERe appendIces, filed up to that pOInt In tune WhIle It was agreed In each case that the settlements were "wIthout prejUdICe or precedent to posItIOns eIther the umon or the employer may take on the same Issues In future dIscussIOns", the partIes recogmzed that dIsputes mIght anse regardIng the ImplementatIOn of the memoranda. AccordIngly, they agreed, at Part G, paragraph 8 The partIes agree that they wIll request that FehcIty Bnggs, VIce Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvIng any dIsputes that anse from the unplementatIOn of tlus agreement It IS tlus agreement that provIdes me wIth the jUnSdIctIOn to resolve the outstandIng matters 3 Both MERe 1 and MERe 2 are lengthy and comprehensIve documents that provIde for the IdentIficatIOn of vacanCIes and posItIOns and the procedure for fillIng those posItIOns as they become aVailable throughout vanous phases of the restructunng GIven the complexIty and SIze of the task of restructunng and decommIssIOmng of InstItutIOns, It IS not surpnSIng that a number of gnevances and dIsputes arose ThIS award deals wIth those dIsputes that have arIsen under the MERe Memoranda of Settlement The partIes attended at an arbItratIOn heanng and provIded facts and submIssIOns concernIng the outstandIng Issues In large measure the facts were In agreement All of the gnevances were from three correctIOnal facIlItIes and I wIll deal wIth each In turn Barrie Jail The Barne JaIl was IdentIfied as one of the four facIlItIes hnked to the pnvatIzatIOn of the Central North CorrectIOnal Centre (hereInafter referred to as "CNCC") In Penetangmshene The bargaInIng umt employees from the Barne JaIl were Informed that theIr nghts and entItlements under the CollectIve Agreement would come from AppendIx 18 - Schedule C - Transfers Through Tendenng (ServIce Restructunng) of the CollectIve Agreement In effect at the sahent tIme In early 2001 these employees were gIven the optIOn under AppendIx 18 to opt Into the RFP (Request for Proposal) and move to the new employer In accordance wIth the prOVISIOn of the CollectIve Agreement or opt out of the RFP and be released from employment wIth severance as provIded at AppendIx 18 Schedule C The agreements allowed some classIfied employees at the Barne JaIl access to lateral transfers There was also an electIOn process to detennIne employees' ehgIbIhty 4 provIded In the memoranda of agreement and the classIfied employees at the BarrIe JaIl were subsequently gIven an opportumty to opt Into tlllS agreement On May 5, 2001 the MInIstry announced the successful bIdder to operate the new facIhty (CCNC) In Penetangmshene On October 28, 2001, the employer released those bargaInIng umt employees at the BarrIe JaIl who had. 1 Opted Into the RFP under AppendIx 18 to allow them to start work at CNCC for the new employer on October 29,2001, and 2 The employees who had opted out of the RFP under AppendIx 18 and who had not receIved or had refused a lateral transfer to a transItIOn cost centre or to another work locatIOn under the MERe agreements and who had obtaIned employment outsIde of the OPS wIth the new employer at CNCC or wIth another employer The bargaInIng umt members who had elected to, and receIved a lateral transfer to the BarrIe JaIl transItIOn cost centre, were Infonned they would not be released at tlllS tune as the BarrIe JaIl contInued to house Inmates FIve employees at the Barne JaIl have filed gnevances The partIes agreed to put three questIOns for my determInatIOn It IS hoped that a decIsIOn on these three questIOns wIll substantIally address the Issues In dIspute ansIng from those gnevances The partIes made submIssIOns regardIng each of the questIOns Before addressIng each of the three questIOns, I wIll set out a few of the specIfic facts about the gnevors that are relevant to my determInatIon The five gnevors are employees who had laterally transferred to the Barne JaIl transItIOn cost centre and all had Informally notIfied the employer that they wIshed to exerCIse theIr pay In heu nghts under ArtIcle 20, upon receIpt of theIr surplus notIce 5 Each gnevor claimed they receIved employment offers from the new pnvate operator at CNCC Management at the Barne JaIl had a hst of those employees to whom the pnvate operator had made employment offers However, the Employer dId not release these gnevors at that tIme AccordIng to the gnevors, the pnvate operator Informed them that If they could not be released at such a tune so as to allow them to report for work at CNCC on October 29, 2001, the offer of employment would be wIthdrawn Further, CNCC would not gIve a commItment to these employees that a Job would be held for them untIl theIr release The gnevors have filed gnevances claimIng that the employer Improperly created two surplus dates to theIr detnment It was the gnevor's VIew that throughout the process, employer representatIves told them that all of the Inmates at the BarrIe Jail would be moved to the CNCC facIhty at the same tIme and then all of the employees would be surplused It was the gnevor's posItIOn that accordIng to ArtIcle 20 and AppendIx 18 of the CollectIve Agreement there should have been only one surplus date The employer was unreasonable In eXerCISIng ItS nghts as It dId and ItS Inappropnate actIOns dIsadvantaged the gnevors There would have been sufficIent employees to operate the facIhty If the Employer had allowed the gnevors to leave when they requested to do so Further, the common surplus date referred to In the MERe 1 and 2 agreements was Intended to ensure that the employees who elected ArtIcle 20 nghts wantIng to stay In the Ontano Pubhc ServIce would have reasonable and eqUItable opportumtIes at redeployment and bumpIng prOVISIOns It should not have apphed to them because they had Infonnally IndIcated to the MInIStry of theIr desIre to leave It was the Employer's posItIOn that the gnevors could not be released untIl all of the Inmates of the JaIl were removed. The Employer had a common surplus date of 6 November 21,2001, whIch apphed to four transItIOn cost centres, as well as Welhngton DetentIOn Centre, Waterloo DetentIOn Centre, Brantford JaIl, some VanIer Center for Women, as well as those employees IdentIfied at the cloSIng facIlItIes whose posItIOns were hnked to IntermIttent and escort functIOn Further, the Employer suggested that the partIes specIfically consIdered tlllS matter In theIr agreement and It dId not breach those prOVISIOns Paragraph 6 found at page three of the MERe 1 states The employees will rem am at their current work sIte until the date the mstItutlOn no longer houses mmates or another date agreed to by the employer and the employee. Upon mutual agreement employees may be temporarily assigned elsewhere until their placement occurs. THE QUESTIONS 1 DId the employer have the nght to create two dIfferent dates for release from employment, as contemplated In the MERe 1 and 2 agreements, the CollectIve Agreement ArtIcle 20 and AppendIx 18? 2 DId the employer exerCIse bad faith In not releasIng the employees on October 28, 2001 who were afforded ArtIcle 20 nghts as captured by MERe 1 and 2 and the collectIve agreement? 3 Were the gnevors dIsadvantaged by the employer's actIOns? If so, what remedy IS appropnate? DECISION The preamble of MERe 1 states The partIes agree to the folloWIng settlement of Umon pohcy gnevances dated June 6, 2000 and June 29, 2000, IndIVIdual and group gnevances, hsted In AppendIx A, regardIng ArtIcle 31 15 and ArtIcle 6, wIth regard to all CO posItIOns at all InstItutIOns All such gnevances filed up to the date of sIgnIng of thIS agreement are settled by vIrtue of the agreement The processes Identified m this agreement shall commence after the ImplementatIOn of the 7 Memorandum of Settlement (GSB File #1252/00 et all signed March 13, 2001 The partIes wIll meet to dISCUSS details of outstandIng vacanCIes and converSIOns for all posItIOns other than CorrectIOnal Officer posItIOns pnor to May 1,2001 (emphasIs mIne) Generally speakIng, the MERe agreements are, as prevIOusly stated, comprehensIve documents that were arnved at after negotIatIOns No doubt In thIS matter as wIth most settlements there were compromIses made by each party It IS eVIdent from the detail set out In the agreements that the partIes stnved to resolve the gnevances that were outstandIng at the tIme and attempted to estabhsh a process that artIculated sIgmficant nghts to employees but provIded the Employer the abIhty to efficIently operate ItS busIness As I understand It, there were, at the tnne, many major changes that were about to occur In a number of workplaces Those changes would clearly have a sIgmficant effect on all of the employees many of whom had worked In those InstItutIOns for many years A reVIew of the MERe agreements reveals the partIes worked dIhgently to affect a settlement that provIded a balance of the Interests of the partIes SpecIfically regardIng the first questIOn posed by the partIes I must find for the Employer Paragraph 6 IS clear that there IS an obhgatIOn on employees to remaIn at an InstItutIOn untIl no Inmates remaIn There IS a proVIsIOn that another date can be agreed upon between the employer and employees ThIS would facIhtate the employers need to reduce the number of employees as the Inmate populatIOn reduced as well as allow for partIcular employee needs regardIng theIr future However, for an employee to be released pnor to the date that the Jail IS empty of Inmates specIfically and very clearly reqUIres agreement between the employer and the employee The qUld pro quo for the employees IS that the Employer IS obhged to contInue theIr employment at the Jail for the same penod or, If mutually agreed, allow a temporary assIgnment elsewhere It IS 8 not surpnSIng that there would be Instances when one party wants an end date that IS not convement to and therefore not agreed upon by the other party Further, there IS notlllng that I could find In eIther artIcle 20 or In AppendIx 18 that would lead me to find that the Employer's failure to have one surplus date was In breach of the collectIve agreement As I understand the dIspute, the gnevors have alleged that the very fact that the Employer would not release them on October 28, 2001 constItuted bad faith I thInk not Even If there were other staff remaInIng In the Jail In number sufficIent to attend to the Inmates there IS nothIng before me that would have me find bad faith The agreement gIves the employer (and employees) certaIn nghts and It IS not bad faith If eIther the Employer or employees InSISt on those nghts FInally, regardIng the final questIOn at thIS facIhty, It mIght be that some employees were each negatIvely affected. No doubt that IS why gnevances were filed. However, the mere findIng of an employee beIng dIsadvantaged IS not sufficIent for theIr gnevance to be upheld. In order for thIS Board to uphold a gnevance and order a remedy It must first find a contractual breach and I cannot make such a findIng In the facts before me MAPLEHURST The newly created Maplehurst Female InstItutIOn (hereInafter referred to as "MFI") wIll house more than 340 remanded and provIncially sentenced female Inmates once It IS fully operatIOnal Adult female Inmates currently housed at HamIlton Wentworth DetentIOn Centre (hereInafter referred to as "HWDC"), Metro West DetentIOn Centre (hereInafter referred to as "MWDC"), and V amer Centre for Women (hereInafter referred to as "VCW") wIll be transferred to the new facIhty over the next months 9 MWDC and HWDC wIll no longer house adult female Inmates Bed space created by the move wIll be filled wIth male offenders VCW adult umts wIll close when the adult female Inmates are moved wIth the exceptIOn of one umt, whIch currently houses female young offenders, whIch wIll remaIn open at the current Vamer locatIOn It wIll be known as the Vamer IntermIttent Female Young Offender Umt (hereInafter referred to as "VIFYOU") The Mimstry's pohcy on the supervIsIOn of Inmates In accordance wIth the Adult InstItutIOn Pohcy and Procedures manual IS as follows The mInIstry's pohcy WIth respect to the assIgnment of male and female correctIOnal officers IS desIgned to be consIstent WIth the Ontarzo Human Rlghts Code's prohIbItIon on dISCnmInatIOn on the grounds of sex In hInng and work assIgnments whIle demonstratIng consIderatIOn and sensItIvIty towards the personal dIgmty and modesty of Inmates These objectIves are achIeved by ensunng an appropnate balance of male and female officers on each shIft so that dutIes reqUInng officers of the same sex as Inmates can be performed routInely (1 e , superVIsIOn of showers, escorts, etc ) In dIscussIOn, the MInIStry IndIcated that In order to meet ItS obhgatIOns for female offenders around programmIng, female Inmate pnvacy and the pohcy on same sex supervIsIOn there was a need to have a hIgher percentage of female classIfied correctIOnal officers than male classIfied correctIOnal officers at the InstItutIOns Dunng the transItIOn of the facIlItIes It was agreed between the MInIStry and the Umon that a mInImUm of 75 per cent of the classIfied correctIOnal officer posItIOns for the new MFI facIhty for the new MFI facIhty would be offered to female correctIOnal officers only It was further agreed that a mInImUm of 75 percent of the correctIOnal officer posItIOns allocated at the VIFYOU would be offered to female correctIOnal officers only 10 The agreed upon proportIOn of seventy five percent was hIgher than the female correctIOnal officer percentage had lllstoncally been at the only prevIOusly exclusIvely female InstItutIOn (VCW) That ratIO had been less than 70 percent However, both partIes recogmzed that a hIgher ratIO of females would be needed for a number of reasons For example, female correctIOnal staff wIll exclusIvely staff the very busy, large admIttIng and dIscharge area and the health care/Infirmary area at MFI These two areas of exclusIvely female correctIOnal officer represent at least 17 out of 98 posItIOns Other areas may also reqUIre exclusIve female staffing as well The balance of posItIOns at MFI would reqUIre a blendIng of female and male correctIOnal officers to the extent that all eIght separate hVIng umts wIll have constant correctIOnal officer supervIsIOn dunng the 16 hours of daily unlock. Therefore, a ratIO of 75 percent female classIfied correctIOnal officers to 25 percent male classIfied correctIOnal officers was agreed upon as the appropnate ratIO As a result of the agreement of the necessary percentage of female correctIOnal officers, some male correctIOnal officers at the three InstItutIOns were unable to secure posItIOns at MFI or VIFYOU At the same tune female classIfied correctIOnal officers wIth less semonty were successful In gaInIng posItIOns where the male officers had been demed All correctIOnal officers who were unsuccessful In gaInIng posItIOns, or who were not Interested In posItIOns at MFI or VIFYOU eIther remaIned In theIr current posItIOn at MWDC or HWDC, or In the case of VCW, were surplussed under ArtIcle 20 of the CollectIve Agreement and offered Jobs wIthIn 40 kIlometers A number of gnevances were filed In thIS regard. 11 THE QUESTIONS 1 Is the agreement regardIng the mInllllUm percentage of female classIfied correctIOnal officers, as described In MERe 1, In comphance wIth the Ontarzo Human Rlghts Code and ArtIcle 3 of the CollectIve Agreement? 2 Is the agreement on a mInllllUm percentage of female classIfied correctIOnal officers, as described In MERe 1, In comphance wIth the layoff/semonty prOVISIOns of the CollectIve Agreement? DECISION Part F of the MERe 1 agreement states the folloWIng at page 10 In order to comply wIth the mInIstry's pohcy on same sex superVISIOn and In comphance wIth ArtIcle 3 of the CollectIve Agreement, the partIes agree to the folloWIng process to staff the CorrectIOnal Officer ClassIfied complement at the Maplehurst Female InstItutIOn (MFI) In addItIon nothIng In thIS agreement constItutes Umon agreement to the current complements IdentIfied In tlllS agreement 1 After full Inmate occupancy, the staffing complement at Maplehurst Female InstItutIOn wIll be a mInllllUm of seventy-five (75%) per cent classIfied Female CorrectIOnal Officers ClassIfied CorrectIOnal Officers at three (3) facIlItIes, Metro West DetentIOn Centre, HamIlton Wentworth DetentIOn Centre and Vamer wIll be offered CorrectIOnal Officer posItIOns In accordance wIth tlllS agreement 2 The partIes wIll maIntaIn a mInllllUm of seventy-five (75%) classIfied female CorrectIOnal Officer complement at MFI on an ongOIng basIs The partIes further agreed to a staffing process for each of InstItutIOns whereby a percentage of female staff were offered posItIOns on the basIs of semonty The remaInIng posItIOns were offered to officers of both genders In descendIng order of semonty 12 As the result of gnevances that were filed by correctIOnal officers, the partIes have asked If theIr agreement vIOlates the Human Rlghts Code or ArtIcle 3 of the CollectIve Agreement Employees are protected by statute from dISCnmInatIOn based on a vanety of prohibIted grounds In the PrOVInce of OntarIO IncludIng gender Further, ArtIcle 3 In the collectIve agreement between these partIes provIdes that "no dISCnmInatIOn shall be practIced by reason of sex " In my VIew, the fact that the Employer and the Umon have agreed on a staffing complement that IS not equal for both genders does not, In and of Itself, vIOlate the Human Rlghts Code or ArtIcle 3 of the CollectIve Agreement There has been much Junsprudence In thIS area and It IS not my IntentIOn to reVIew It In any detail It IS sufficIent to say that the obhgatIOn of no dISCnmInatIOn In the workplace does not mean that there has to be gender equahty of the workforce However, there does have to be legItImate, bonafide reasons for pohcIes or practIces that tend to favour one gender over another as IS beIng suggested by the gnevors In tlllS matter In the Instant case, the partIes put theIr mInds to the legItImate need that female Inmates have for correctIOnal officers of the same gender to be In charge of theIr IncarceratIOn GIven the nature of the busIness It would be dIfficult to find that such a staffing agreement IS not reasonable Therefore, I find that neIther the collectIve agreement nor the Human Rlghts Code has been vIOlated. The gnevors have also suggested that the mInllllUm percentage of female classIfied correctIOnal officers vIOlated the lay-off and semonty prOVISIOns of the collectIve agreement I thInk not The Mimstry InstItuted a pohcy dealIng wIth the Issue of same sex supervIsIOn and that pohcy brought about a recogmtIOn that In vanous InstItutIOns there IS a number of male correctIOnal officer posItIOns and a number of female correctIOnal officer posItIOns AgaIn, that dehneatIOn of posItIOns based on gender IS neIther dISCnmInatory nor unreasonable In the CIrcumstances It therefore follows that 13 the determInatIOn and IdentIficatIOn of the posItIOns to be laid off would Include takIng that gender mIX Into account To do so dId not vIOlate artIcle 18 or artIcle 20 GUELPH CORRECTIONAL CENTRE In the fall of 2000 the MInIStry Informed employees at the Guelph CorrectIOnal Centre (hereInafter referred to as "G C C") that the operatIOn was beIng relocated to the CNCC wIth the exceptIOn of the Guelph Assessment and Treatment Umt (hereInafter referred to as "GA TU") Employees were told that GA TU was gOIng to be temporanly relocated to the vacated Welhngton DetentIOn Centre After approxImately two years In tlus nearby locatIOn It would be pennanently located In BrockvIlle The Issue of GATU employee nghts upon the relocatIOn to BrockvIlle was unknown at that tIme The Inmate populatIOn at GATU Included a sIgmficant number of mentally handIcapped and mentally III Inmates In GATU, the Inmates receIved a greater level of programs and treatment The correctIOnal staff were assIgned responsibIhty for a small number of Inmates In conjUnctIOn wIth treatment staff such as nurses and social workers No correctIOnal officers or other employees were lured to work exclusIvely In GA TU WhIle no formal postIng eXIsted for GA TU correctIOnal officer posItIOns, classIfied correctIOnal officers could request to be assIgned to GA TU As the result of a gnevance settlement, IndIVIduals would be moved from theIr GATU posItIOn to accommodate new IndIVIduals The correctIOnal officer wIth the longest penod of assIgnment In GA TU would be moved back Into the maIn correctIOnal center Pnor to assumIng a GA TU assIgnment an employee would meet wIth semor staff for onentatIOn about workIng wIth mentally III and mentally dIsabled Inmates By letter dated November 21, 2000, the Employer IdentIfied a specIfic number of posItIOns for certaIn classIficatIOns that would be needed for the contInuIng operatIOn of 14 GA TU Ehgible employees were InvIted to IndIcate theIr Interest In beIng assIgned to G.A.TU If there were more employees Interested than aVailable posItIOns assIgnment deCISIOns were based on semonty All employees who dId not receIve an assIgnment to a GATU posItIOn because they were Inehgible for a posItIOn because of lower semonty or due to a lack of posItIOn aVaIlabIhty were then offered a posItIOn at eN C C In accordance wIth AppendIx 18 A small group of Industnal employees who worked at Gee for TRILCOR (pnson Industnes) were not Included In the RFP for the pnvate pnson Nor were those who had already succeeded In attaInIng the Jobs at G.A.T U After the letters InVItIng employees to apply to GA TU posItIOns were Issued and the resultIng posItIOns were assIgned to semor IndIVIduals a decIsIOn by the Gnevance Settlement Board, chaired by VIce Chair Brown, was released that ordered the number of posItIOns at GA TU Increased by five Those extra posItIOns were awarded to IndIVIduals who had already IndIcated theIr Interest In GA TU but had not sufficIent semonty to attaIn a posItIOn In the first Instance In addItIon VIce Chair Brown awarded a number of "ArtIcle 20 posItIOns" for correctIOnal officers and others for work related to escort work and for IntennIttent work at Burtch CorrectIOnal Centre Those ArtIcle 20 posItIOns, whIch were offered on the basIs of semonty, created further GA TU vacanCIes, whIch In turn were filled from the ongInal electIOn hst from November of 2000 For example, a semor correctIOnal officer who had ongInally obtaIned a GATU posItIOn as the result of the electIOn process later accepted an ArtIcle 20 escort posItIOn HIs/her posItIOn In GATU then became aVailable for a correctIOnal officer wIth less semonty No GATU posItIOns were aVailable to correctIOnal officers at the other three AppendIx 18 InstItutIOns (Burtch CorrectIOnal Centre, BarrIe JaIl and Parry Sound JaIl) However, ArtIcle 20 posItIOns IdentIfied for those InstItutIOns and 15 specIfic to those InstItutIOns were offered to CorrectIOnal Officers at the three InstItutIOns It was after these events that the partIes negotIated the MERe agreements The partIes agreed that, where possible, correctIOnal officers at the four RFP InstItutIOns IncludIng Gee were to be offered optIOns to remaIn In the Ontano Pubhc ServIce Pnor to the MERe 1 agreement those correctIOnal officers who dId not have a GA TV posItIOn or an ArtIcle 20 posItIOn had only the optIOns of acceptIng employment at the pnvate pnson or resIgnIng from the pubhc serVIce In accordance wIth the MERe 1 agreement the folloWIng took place 1) CorrectIOnal officers at the four RFP InstItutIOns, except for those correctIOnal officers who had prevIOusly been offered the optIOn of ArtIcle 20 were offered transfers to a transItIOnal cost center vacancy The transItIOnal cost center posItIOns then gave successful correctIOnal officers ArtIcle 20 nghts 2) CorrectIOnal officers at the four RFP InstItutIOns who had receIved neIther an offer of a transItIOn cost center vacancy nor an ArtIcle 20 optIOn were automatIcally Included on the MInIstry lateral transfer hst for all vacanCIes These correctIOnal officers were added to those already named on the MInIstry lateral transfer hst as of the ongInal date of the agreement In Apnl of 2001 When a correctIOnal officer accepted a lateral transfer to another facIhty from one of the RFP InstItutIOns that person dId not transfer ImmedIately In accordance wIth the agreement, the correctIOnal officer remaIned at theIr current facIhty untIl the facIhty no longer housed Inmates or untIl another date that was agreed upon by the employer and employee However, the correctIOnal officer was no longer consIdered an employee of the RFP InstItutIOn Further, upon acceptance of the posItIOn 16 the employee was governed by the prOVISIOns of the CollectIve Agreement apphcable to theIr new posItIOn 3) Subsequent to these events, vacanCIes created In GA TU as a result of the agreement contInued to be offered to Guelph correctIOnal officers who had IndIcated that they wIshed a GATU posItIOn In the November of 2000 electIOn process except for those who had accepted a lateral transfer QuestIOn #1 Should employees have been allowed to change theIr electIOn for GA TU folloWIng the November of 2000 process? It was the Umon's posItIOn that some IndIVIduals dId not express an Interest In a GATU correctIOnal officer posItIOn In November of 2000 because they thought they had InsufficIent semonty to have a reasonable chance of attaInIng one of the posItIOns Further, CIrcumstances sIgmficantly changed after November of 2000 Those employees should have had the nght to change theIr electIOn because there was greater opportumty for Jumor employees after the MERe 1 agreement was Implemented. It was the Employer's VIew that the employees were advIsed In November of 2000 that CIrcumstances regardIng the number of posItIOns at GATU mIght change or that other opportumtIes would likely anse allowIng more Jumor employees access to the GA TU posItIOns Indeed, many Jumor employees elected to accept a GA TU posItIOn In November of 2000 and were successful NothIng changed wIth respect to the ongOIng GA TU operatIOn other than a shght Increase In the number of correctIOnal officers needed. Moreover, If the Employer had re-run the electIOn for GATU posItIOns after each process was completed admInIstratIve chaos would have resulted. 17 DecIsIOn - QuestIOn #1 I can find nothIng In any of the relevant terms and prOVISIOns that would lead me to find that the Employer was obhged to re-run the electIOn process for the GA TU posItIOns It IS unfortunate that employees chose not to elect for the GATU posItIOns because they thought It unlikely they would be successful However, there was no agreement that people would have a second consIderatIOn of thIS matter Further, It IS understandable that If the Employer had agreed to re-run the electIOn process consIderable tunnOlI and upheaval would have followed. Many employees who thought they were finally settled mIght have agaIn been told that theIr locatIOn or status was uncertaIn For these reasons, I must dIsmIss tlllS questIOn QuestIOn #2 Should employees who accepted lateral transfer posItIOns under Part B of MERe have been offered GATU posItIOns dunng the lateral transfer process? Further, after acceptIng a lateral transfer posItIOn under Part B should employees have been offered GATU posItIOn? It was the gnevor's posItIOn that IndIVIduals who accepted lateral transfer posItIOns should have been offered the optIOn of a GA TU posItIOn at the tune they were offered the lateral transfer posItIOn, If posItIOns had become aVailable as a result of Part A. The Employer submItted that tlllS was not contemplated In the agreement and would have been dIfficult, If not ImpoSSIble, to admInIster In accordance wIth the MERe agreements approxImately 500 employees at not only the four RFP InstItutIOns but at many other InstItutIOns were beIng dealt wIth Each acceptance or change In an 18 employee's status had the potentIal to Impact on hterally dozens of others Further, If Gee correctIOnal officers who accepted lateral transfers were allowed to take GATU posItIOns after the transfer had been completed they would have been Inehgible SInce theIr nghts would no longer flow from theIr former Guelph posItIOn DecIsIOn - QuestIOn #2 After consIderatIOn I must agree wIth the Employer's VIew In thIS matter AgaIn, It IS not dIfficult to see that allowIng employees an opportumty to change theIr mInds dunng such a complex process would have brought about confusIOn at best and senous dIsplacement at worst QuestIOn # 3 Should correctIOnal officers who were assIgned to GA TU at the tune of the electIOn process In November of 2000 been offered posItIOns at the ongOIng GATU operatIOn so they could follow theIr work regardless of semonty? It was submItted by a number of the gnevors that GATU should have been treated as a separate InstItutIOn for the purposes of Job offers to the ongOIng GATU operatIOn In accordance wIth a "follow your work" prIncIple those employees should have been the first to be offered the GA TU posItIOns before more semor IndIVIduals who happened to be workIng In the non-GATU part ofG C C 19 DecIsIOn - QuestIOn #3 AgaIn, I must find In favour of the Employer In tlllS regard. The hIstOry of work assIgnment In the GATU, whIch evolved from a resolutIOn to an earher gnevance, was that employees rotated through tlllS area and dId not have a penn anent assIgnment AssIgnment to that area was dependent on the number of outstandIng requests for that work and the semonty of those who wIshed that assIgnment It would be unfair to find that the employees who happened to be assIgned to work In GATU dunng November of 2000 had more nght to the posItIOns Indeed, accordIng to the facts, tlllS was an unusual arrangement whereby Jumor employees "bumped" semor employees Into the Gee Therefore, It IS conceIvable that the employees In the GATU In November of 2000 were the most Jumor To provIde them wIth more nghts, Indeed ownershIp of those posItIOns, would sImply be wrong QuestIOn #4 The plan to move the ongOIng GA TU operatIOn to the unoccupIed Welhngton DetentIOn Centre dId not happen and the operatIOn remaInS at the fonner Gee The employees at WellIngton DetentIOn Centre were surplused In accordance wIth ArtIcle 20 after the detentIOn centre closed. Should those employees from Welhngton DetentIOn Centre have been offered the GATU Jobs because GATU was gOIng to be moved to theIr old bUIldIng? Would employees at Welhngton DetentIOn Centre have had nghts to the GATU Jobs had GATU moved to theIr old bUIldIng? 20 DecIsIOn - QuestIOn #4 In Re The Crown In Right of Ontario (Ministry of the SolicItor General and CorrectIOnal Services) and OPSEU (UnIOn Grievance) GSB # 1252/00, dated February 12, 2001, VIce Chair Brown detennIned that GATU IS a "stand alone" InstItutIOn The employees at Welhngton DetentIOn Centre were not entItled to apply for the GATU posItIOns At the tIme of the electIOn the work at Issue was entIrely under the operatIOnal dIrectIOn of the Gee AgaIn, there IS nothIng In the collectIve agreement or the other agreed upon terms and condItIons that I can find that would have me declare the employees at Welhngton had any nght to the GA TU work In my VIew, there IS no need to answer the second part of tlllS questIOn as It dId not occur and there IS nothIng to be gaIned from answenng such a questIOn In the hypothetIcal Dated In Toronto tlllS 26th day of March, 2003 j " , - , II ~ ~ F ehcIty D Briggs VIce-Chair