GSB #1252/00

OPSEU#00U148, 00U149, 00U150

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union Grievance) Grievor

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) Employer

BEFORE Richard Brown Vice Chair

FOR THE David Wright, Counsel GRIEVOR Ryder, Wright, Blair & Doyle Barristers and Solicitors

FOR THE Len Marvy, Counsel EMPLOYER Legal Services Branch Management Board Secretariat

HEARING January 22, 2001, February 5, 2001.

This is the second decision on a union policy grievance arising out of the impending opening of the Central North Correctional Centre (CNCC) in Penetanguishene. The government has issued a request for proposals (RFP) to find a private-sector entity to operate this new facility. Except as noted below, all employees at each of four institutions, now operated by the Ministry of Solicitor General and Correctional Services, have received notices informing them that their jobs will be included in the RFP. The four facilities are: (1) Barrie Jail; (2) Parry Sound Jail; (3) Burtch Correctional Centre in Brantford; and (4) Guelph Correctional Centre.

The union contends the list of employees attached to the RFP includes some who should have been excluded. The list is also said to exclude other employees who should have been included. These issues are addressed in this decision. Another decision, dated February 8, 2001, deals with the application of Appendix 13 to employees whose work will be privatized at the same time as it is moved to CNCC. There remains to be considered the application of Appendix 13 to employees acting as community escorts whose work will be moved to CNCC approximately one year before it is transferred to the private sector.

I

The construction and planned privatization of CNCC is part of an ongoing transformation of correctional services for adult inmates in southern Ontario.

In the old system being phased out, six correctional centres house sentenced male inmates, excluding those in need of psychiatric or psychological assessment or treatment. Burtch and Guelph are two of these centres. The remaining four are: Maplehurst Correctional Centre; Mimico Correctional Centre; Millbrook Correctional Centre; and Rideau Correctional Centre. Each of these facilities is classified as minimum, medium or maximum security. Burtch is the only institution with minimum security and Millbrook the only one with maximum security. There is more than one medium security facility. The determination of where a particular inmate serves his sentence is based primarily upon the level of risk he poses. In cases where more than one facility offers an adequate level of security, geography plays a role in the Ministry’s decision about where to send an inmate.

In the new system being put in place, sentenced males not requiring assessment or treatment will be housed at three large institutions: CNCC in the western region; Maplehurst Correctional Centre being reconstructed in the central region; and Central East Correctional Centre (CECC) being built in the eastern region. CNCC is to be privatized but Maplehurst and CECC will be operated by the Ministry. As each of the new facilities will offer all three levels of security, the matching of inmates with institutions will not be determined by risk. Instead, an inmate typically will be assigned to the centre located in the region where he was sentenced.

In the old system, male inmates in southern Ontario needing assessment and treatment were assigned to one of four locations including the Guelph Assessment and Treatment Unit (GATU). The new system will house all such inmates in a new facility at Brockville .

Vanier Centre for Women is the only existing correctional centre with female inmates. It is classified as minimum/medium security. According to the Ministry’s manual for the classification of adult offenders, sentenced females requiring maximum security have been held in jails or detention centres. CNCC and CECC each will house 34 females including both sentenced and remanded inmates. There will be a much larger population of females at Maplehurst.

II

CNCC is expected to open its doors in the summer of 2001. According to John O’Brien, Director of Transition Planning for the Ministry, there will be a “ramp-up” period of six to nine months. During this time, the new facility will receive all remanded inmates at Barry Jail and Parry Sound Jail. These two jails will close when this transfer is complete. Thereafter, CNCC will service the same courts as previously were serviced by Barrie and Parry Sound. Also during the “ramp-up” period, the new facility will receive all sentenced inmates at Burtch, except those serving intermittent sentences, and all sentenced inmates at Guelph, except for those in GATU. Guelph and Burtch will close when this transfer is complete. All offenders sentenced in the western region, after the opening of CNCC, will be sent there.

When Guelph closes, GATU inmates will be transferred to a temporary location at Wellington Detention Centre, pending the completion of the new facility in 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 being attached to GATU and excluded them from the RFP. Employees were invited to apply for these positions and assignments were made on the basis of seniority.

Also excluded from the RFP are the positions held by seven industrial officers and one clerk attached to the Trilcor program at Guelph. Inmates participating in the Trilcor program produce items for sale to outside purchasers. These inmates will be transferred to CNCC when Guelph closes, but the Trilcor program will be moved to some not yet determined location within the Ministry. With the exception of these Trilcor and GATU employees, the RFP includes all members of the bargaining unit at the four designated institutions. It does not include anyone working elsewhere.

The total number of inmates held at the four closing facilities is less than the number CNCC will be able to hold. The number of remanded inmates held at Barrie and Parry Sound combined is approximately the same as the number of beds in the remand pod being built at CNCC. However, CNCC will be able to hold far more sentenced inmates than the number slated for transfer there from Guelph and Burtch. There will be 960 beds in the five pods for sentenced inmates at the new correctional centre. Excluding GATU inmates and those at Burtch with intermittent sentences, the average inmate count at the two closing facilities 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 institutions slated to close. For example, these institutions have a complement of 80 in the classification of correctional officer 1 and a complement of 382 in 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 union challenges the inclusion of some employees on the list attached to the RFP and the exclusion of others. The union claims each of the disputed inclusions 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 of bargaining unit functions or jobs, the employees that the employer determines will be included in the Request for Proposals (RFP) will be notified not less than ten (10) working days prior to the release of the RFP that their jobs will be included in the RFP and provided the opportunity to elect in writing, within five (5) working days of being notified, not to be included in the RFP. In default of the election, the employee is deemed to be included in the RFP.

In the course of argument, I was also referred to the following articles in 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 Ministry has released. If OPSEU believes that the tender is not in compliance with either Article 5 or Article 6C.0 as appropriate, OPSEU may refer the matter to arbitration/mediation and the matter must be resolved 15 days prior to the closing of the tender. (emphasis added)

8.4.1 The Parties agree that the determination of the method and/or manner and the quantity and timing 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 in accordance with Article 2.1 of the Collective Agreement.

Article 2.1 of the collective agreement is the management rights clause.

Union counsel conceded article 8.4.1 gives the employer a “free hand” to determine which services are to be transferred to the private sector. According to this line of argument, having decided upon the scope of services being transferred, the employer is obliged by article 6C.1 to correctly identify the jobs or functions attached to those services. Counsel asserted the employer has no right to name an employee in an RFP when his or her work will remain in the public service. In support of this interpretation of article 6C.1, I was reminded the phrase “employees that the employer determines will be included” is modified by the preceding words “in respect of the transfer of bargaining unit functions or jobs”. Counsel also noted article 6C.1, unlike article 8.4.1, does not deem the employer’s decision to be in accordance with the collective agreement. In short, union counsel contended I should apply a standard of “correctness” in reviewing the list of employees included in the RFP, with one exception.

The exception is where the number of employees in a classification exceeds the number required to perform the work being transferred. In this context, counsel for the union conceded article 6C.1 grants the employer the discretion to decide who will be listed on the RFP. For example, having decided not to privatize GATU, the employer had to determine who would remain with GATU and who would be listed on the RFP, given that no-one had been assigned exclusively to GATU in the past. A number of positions were designated as attached to GATU and assigned to qualified applicants in order of seniority. Counsel for the union suggested this was the only proper way for the employer to exercise its discretion.

Employer counsel contended article 6C.1, read in conjunction with article 8.4.1, confers upon management complete discretion to determine who will be included on the RFP. To establish a violation of the collective agreement, said counsel, the union must prove that the employer has acted in a manner that is arbitrary, discriminatory or in bad faith, or that it’s decision is not based upon legitimate governmental purposes. I was urged to conclude the time limit in article 8.2 indicates the facilitation of an expeditious transfer is a legitimate objective. Counsel also asserted the collective agreement does not mandate the use of seniority in determining who to name in an RFP.

IV

Each of the contested inclusions and exclusions is set out below. In addressing these matters, I have not found it necessary to choose between the standard of arbitral review advanced by the union and the one proposed by the employer.

Exclusion of Positions at Maplehurst, Mimico, Millbrook and Rideau Attributable to Inmates Sentenced in the Western Region

The union contended some of the employees at Maplehurst, Mimico, Millbrook and Rideau should have been included on the RFP because some inmates at these facilities have been drawn from the western region. For example, Mr. O’Brien estimated one-third of Millbrook’s inmates have come from the western region. The union argued one-third of the work performed at Millbrook has been to service inmates from western Ontario and this part will be transferred to CNCC. According to this line of argument, one-third of Millbrook employees should have been included on the RFP. No evidence has yet been led as to how many offenders, sentenced in the western region, have been sent to Maplehurst, Mimico or Rideau. To the extent these institutions have drawn inmates from the western region, the union relied upon an argument analogous to the one made about Millbrook.

The tacit premise underlying this argument is that the determination of whether work will be transferred between two facilities should be made by comparing the types of inmates held at one in the past with the types to be held at the other in the future. As inmates of a type who have been sent to Millbrook, those sentenced in the western region and held in a maximum-security setting, will go to CNCC, the union argued part of Millbrook’s work will be transferred to CNCC. When union counsel spoke of work being transferred, I understood him to mean a transfer of “bargaining unit functions or jobs” under article 6C.1

An alternative approach to deciding whether “bargaining unit functions or jobs” will be transferred from one facility to another is to ask whether any inmates actually will move between the two. Most of the sentenced inmates held at the four designated facilities 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. Applying the alternative approach to these facts, one would conclude “bargaining unit 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 identifying a transfer between two facilities.

Counsel for the employer noted the approach advocated by the union would result in employees leaving Millbrook and being replaced there by others. According to the union’s proposal, one-third of Millbrook employees would be listed on the RFP, and they would cease working at Millbrook when CNCC opens. As none of the inmates held there will be transferred to CNCC, Millbrook employees listed on the RFP would have to be replaced. Union counsel conceded this would occur.

When the parties to the collective agreement negotiated article 6C.1, did they intend that positions vacated by employees listed on an RFP would be filled by others? The answer is almost certainly not. The reason for listing employees on an RFP is that they have been rendered redundant by the transfer of services to the private sector. By definition, redundant employees need not be replaced. This analysis leads me to conclude article 6C.1 does not require the employer to use the approach advocated by the union. Even if the standard of arbitral review is one of “correctness”, I would conclude the employer did not violate article 6C.1 by excluding Millbrook employees from the RFP.

The exclusion of Millbrook employees is indistinguishable from the exclusion of those at Maplehurst and Rideau, because the evidence indicates none of the inmates held at either of these facilities 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 grievance is dismissed.

As emphasized by union counsel, 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 living at other institutions will be sent to CNCC? In this regard, I note Mr. O’Brien testified that Mimico will close, but there is no evidence as to where the inmates living there will go. If they are slated for transfer to CNCC and the union wishes to pursue this matter, I remain seized to determine whether the employer acted properly in excluding Mimico employees from the RFP.

Inclusion of Positions at Guelph and Burtch Attributable to Inmates Sentenced outside the Western Region

The union contended some employees at Burtch and Guelph should not have been included on the RFP, because some of the inmates at these two facilities have been drawn from the central and eastern regions. Mr. O’Brien estimated 20% of Burtch inmates serving straight sentences have come from outside the western region as have 50% of the inmates at Guelph. The union argued the same percentage of the work performed at Burtch and Guelph respectively has been to service inmates from outside western Ontario and this part will not be transferred to CNCC. According to this line of argument, the corresponding percentage of employees at the two closing facilities should not have been included in 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 determination of whether “bargaining unit jobs or functions” will be transferred between two facilities should be made by comparing the types of inmates at the two locations. As inmates of a type who have been sent to Guelph and Burtch in the past, those sentenced outside the western region whose security needs could be met by one of these institutions, will not be sent to CNCC in the future, the union claimed the work associated with this type of inmate will not be transferred to the new facility. The other way to determine whether “bargaining unit functions or jobs” will be transferred from one facility to another is to focus on the movement of inmates between the two. With the exception of GATU inmates at Guelph and those serving intermittent sentences at Burtch, all inmates at these two institutions will be transferred to CNCC when it opens.

According to the union’s proposal, the percentage of inmates at Guelph and Burtch who will transfer to CNCC would far exceed the percentage of employees included in the RFP at these two institutions. Consider, for example, the situation of correctional officers at Guelph excluding GATU. The union proposed that only 50% of correctional officers be included in the RFP, even though all inmates will be sent to CNCC. The employees excluded from the RFP would no longer be needed at the Guelph facility. They would have been rendered surplus at that location by the transfer of inmates to CNCC. In other words, the 50% of employees excluded from the RFP would become redundant as a result of the transfer of inmates to CNCC, even though the exclusion of these employees would rest upon the premise that the corresponding 50% of “bargaining unit functions or jobs” was not being transferred to the new institution.

This analysis demonstrates the flaw in the union’s interpretation of “bargaining unit functions or jobs”. When the parties to the collective agreement negotiated article 6C.1, I doubt very much they intended to exclude from an RFP employees who are rendered surplus by a transfer of services to the private 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 excluding 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 Serving Intermittent Sentences at Burtch

The union contended 30% of Burtch employees in certain classifications, those involved with inmates serving “intermittent” sentences, should not have been included in the RFP, because inmates of this sort will not be transferred to CNCC. The percentage of inmate-days at Burtch attributable to intermittent sentences was 21% in fiscal year 1999-2000 and rose to 30% in the first nine months of the current fiscal year.

As noted by counsel for the union, the evidence does not reveal any reason for the employer’s decision to treat employees working with Burtch inmates serving intermittent sentences differently than employees working with GATU inmates. Neither category of inmate will be transferred to CNCC.

At Guelph, the employer designated a number of GATU positions, invited qualified employees to apply for them, made assignments on the basis of seniority, and excluded the successful applicants from the RFP. In my view, the employer’s decision not to treat Burtch employees in an analogous fashion, a decision for which the evidence discloses no legitimate reason, was arbitrary.

This part of the grievance is allowed. The employer is directed to amend the list of employees attached to the RFP by applying a procedure analogous to the one used for GATU.

Inclusion of Some Food-Service Positions at Burtch, Guelph, Barrie and Parry Sound

The union 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 being built at Maplehurst (page 16). Mr. O’Brien testified the employer listed all food-service employees on the RFP because this was the “most straight forward” approach. No further elaboration of the basis for management’s decision was provided. The union claimed 55% of food-service employees belong on the RFP for the cook-chill 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 inmates, those at GATU, will not be transferred to CNCC, the work entailed in 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 in some employees being 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 grievance is allowed. The employer is directed to amend the list of employees attached to the RFP by applying a procedure analogous to the one management used for GATU.

Inclusion of Positions Attributable to Inmates Participating in Trilcor at Guelph

The union contended a percentage of employees at Guelph should not have been included in the RFP because the Trilcor program is not being transferred to CNCC. The Trilcor program now located at Guelph will continue to be operated by the Ministry at some other location. The evidence does not reveal how many inmates at Guelph participate in Trilcor. Whatever the percentage, the union argued the same percentage of employees should have been excluded from the RFP.

Unlike both GATU prisoners and offenders serving intermittent sentences at Burtch, Trilcor inmates at Guelph will be transferred to CNCC.

This distinction leads me to conclude the employer was not obliged to designate Trilcor positions and fill them with employees who have not worked exclusively in the Trilcor program, such as correctional officers. Even if the standard of arbitral review is “correctness”, the employer would not have violated article 6C.1 in determining the work such employees perform in relation to Trilcor inmates living at Guelph will move to CNCC when they are transferred there.

Employees who have worked exclusively in the Trilcor program, the industrial officers and clerk, were excluded from the RFP, because the employer wished to retain their specialized skills and experience for use at a new location. This was a legitimate reason for treating them differently than most of the staff at Guelph who were included on the RFP, as counsel for the employer argued.

This part of the grievance is dismissed.

Exclusion of Positions Attributable to Female Inmates Transferring to CNCC

The union contended the RFP should have included some employees at facilities from which women will be transferred to CNN, with the specific number to be calculated according to the “appropriate ratio”. The female unit at CNCC will hold 34 inmates and the RFP says it will be filled during the first phase of the “ramp-up” period. Parry Sound has held remanded women appearing before the local courts. Sentenced females have not been held at Burtch or Guelph. Those requiring minimum or medium security have been held at Vanier and those requiring maximum security have been held at various jails and detention centres. The evidence does not reveal how many women will transfer to CNCC from what facilities.

In some ways, the situation of employees at facilities from which sentenced females are slated for transfer to CNCC is analogous to the situation at Guelph with GATU. In recognition of the fact that some Guelph inmates would be going to CNCC and some would not, management divided the workforce into two groups. One group was treated as attached to GATU inmates and excluded from the RFP. The other group was treated as attached to the inmates being transferred to CNCC and included in the RFP. The union advocates similar treatment for employees working at the facilities where women slated for transfer to CNCC now reside.

There may be one difference between these institutions and Guelph. Guelph will close when CNCC opens. Vanier Centre for Women is also scheduled to close but the evidence does not indicate 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 facilities continues to operate after the transfer of inmates to CNCC is complete, and if the inmates sent to the new facility are replaced by others, employees included on the RFP would have to be replaced also.

This issue should not be decided in the abstract without more information about the institutions involved. I remain seized to address the matter if the union elects to pursue it.

Inclusion of Laundry Officers at Burtch and Guelph

The union contended the RFP should not have included 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 this work. In other words, there is uncertainty as to whether employees of the receiving employer will perform the type of work now being done by laundry officers.

Article 6C.1 speaks of “the transfer of bargaining unit functions or jobs.” From the union’s perspective, the “jobs” of laundry officers are not being transferred because the successful bidder may contract out this work. The union sees no distinction between “jobs” and “functions” but the employer does. From the employer’s perspective, the “function” of providing laundry services to inmates will be transferred from the public 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 interpretation to some degree. By referring to both “functions” and “jobs”, this article suggests these two words do not mean the same thing. The disjunctive “or” between them indicates the transfer of “functions” performed by employees, without the transfer of their “jobs”, warrants their inclusion on an RFP.

The employer’s interpretation also is more consistent with the general structure of article 6C.1. Before an RFP is issued, the Ministry is required to identify the employees who will be included in the RFP and to notify them of their inclusion. After the issuance of the RFP, the successful bidder may decide to contract out some work, to use technology requiring different skills than were utilized in the public service, or to distribute duties among employees in different ways. If any of these things happen, the receiving employer will not offer all of the same types of jobs as existed in the public service. Some jobs may change only slightly, others may change dramatically, and still others may be eliminated entirely. At the time employees are named for inclusion in an RFP, there will always be some uncertainty as to which public service jobs will be replicated, to what extent, in the new employer’s workplace. When the parties negotiated article 6C.1, I very much doubt they intended that the determination of who to list on an RFP would depend upon things which could not be known with any substantial degree certainty at the time the RFP is issued.

The analysis leads me to adopt the employer’s interpretation. The “function” of providing laundry services will be transferred from the public service to the successful bidder, regardless of whether this work is contracted out. I conclude the laundry officers were properly included on the RFP, even if the applicable standard of arbitral review is one of “correctness”.

My interpretation will not place laundry officers at any disadvantage in securing employment when compared with employees whose jobs are replicated by the new employer. Article 6C.3 requires the successful bidder to offer all jobs resulting from the transfer to employees listed on the RFP, and if there are not enough jobs for all, to make offers on the basis of seniority. Whether the laundry officers receive a job offer will depend upon their relative seniority and the total number of jobs created by the receiving employer, not upon whether their current jobs are replicated in the new workplace.

This part of the grievance is dismissed.

Inclusion of Industrial Officers Assigned to Burtch Trilcor Program and Guelph Repair Shops

The union contended the RFP should not have included either the industrial officer assigned to the Trilcor book recycling program at Burtch or the industrial officers in charge of the three repair shops at Guelph: the auto-body shop; the small-engine shop; and the upholstery shop. All of these employees are engaged in programs designed to provide inmates with productive work in order to facilitate their rehabilitation. The RFP for CNCC requires the successful bidder to provide a “correctional industries program”, which “may involve more than one distinct business”, with a rate of participation that is “consistent with or exceeds the current participation levels” (page 18).

The situation of these industrial officers is analogous to the situation of laundry officers at the same two institutions. The “function” of providing industrial programs will be transferred to the successful bidder who is required to provide a program of this sort. Pending a determination of the exact type of program to be offered, there is uncertainty as to whether the current jobs of the industrial officers will be replicated in the new workplace. Nonetheless, for the reasons stated above, I conclude they were properly included on the RFP.

There is no evidence that the Ministry plans to relocate the Trilcor book recycling program within the public service. Accordingly, I see nothing arbitrary in management’s decision to list on the RFP the officer involved in this program, while excluding Guelph Trilcor staff whose work is being moved to another location in the Ministry.

This part of the grievance is dismissed.

Inclusion of Shift Engineers at Burtch and Guelph

The union contended the RFP should not have included shift engineers who operate the steam plants at Burtch and Guelph. The proposed staffing model for CNCC does not include any shift engineers. Asked if this omission indicates there will not be a steam plant at CNCC, Mr. O’Brien said he assumed so.

If this assumption is correct, the jobs of shift engineers definitely will not be replicated by the receiving employer. Even in this scenario, the collective agreement would not require that the shift engineers be excluded from the RFP. The function of providing heat will be transferred to the successful bidder. While the shift engineers will not continue in their old job with the new employer, the same may turn out to be true for the laundry officers and industrial officers. There is nothing in article 6C.1 to support differential treatment of an employee whose job will not be replicated, where this is known from the outset, and an employee whose job turns out not to be replicated, where initially there was some uncertainty.

This part of the grievance is dismissed.

Inclusion of Positions Attributable to Community Escort Work at Burtch, Guelph, Barrie and Parry Sound

The union contended a percentage of correctional officers at each of the four designated facilities should not have been included in the RFP, because community escort work at CNCC must be performed by members of the bargaining unit, until July 18, 2002, as required by a decision of the Labour Relations Board, dated December 21, 2000. The evidence does not establish how many escort positions will exist at CNCC. The union submitted the total number of such positions should be divided among the four designated facilities based upon the number of beds being transferred to CNCC from each institution.

Employer counsel conceded the escort work will not be privatized until July 18, 2002, approximately one year after CNCC opens, Nonetheless, counsel argued this delay is analogous to the “ramp-up” of other work, whereby some staff will remain at closing facilities until six to nine months after CNCC opens, at which time they will begin working for the private-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 included in the RFP.

This part of the grievance is dismissed.

V

This award directs the employer to amend the RFP by excluding some food-service employees and some employees working with Burtch inmates serving intermittent sentences. I remain seized to address any issues of implementation arising from this direction. I also remain seized of issues relating to Mimico employees and employees at facilities from which female inmates will be transferred to CNCC. According to article 8.2, all of these matters “must be resolved 15 days prior to the closing of the tender.” The RFP for CNCC will close on March 9, 2001.

I have refrained from ordering the employer to issue a new RFP, as requested by counsel for the union. Counsel submitted article 6C.1 requires that a second RFP be issued at least ten days after the employer gives notice to the employees properly included in the revised RFP. At this stage, the amendments ordered will delete some names listed on the original RFP but will not add the names of any additional employees who did not receive notice of the first RFP. At least in these circumstances, the time limit in article 8.2 precludes an order requiring the issuance of a new RFP.

Dated at Toronto, this 12th day of February, 2001.