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; 01D023; 01D024; 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

Ontario Public Service Employees Union (O'Toole et al.)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Public Safety and Security)

Employer

BEFORE

Felicity Briggs

Vice-Chair

FOR THE UNION

Scott Andrews Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Diane Cotton Staff Relations Officer Ministry of Public Safety and Security

HEARING

July 12 and September 19, 2002.

DECISION

In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the collective agreement including article 6 and article 31.15 as well as grievances relating to the filling of correctional officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the "first phase of the Ministry's transition". One memorandum, dated May 3, 2000 (hereinafter to as "MERC 1" (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as "MERC 2") provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time.

While it was agreed in each case that the settlements were "without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions", the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8:

The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement.

It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.

Both MERC 1 and MERC 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 various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This award deals with those disputes that have arisen under the MERC Memoranda of Settlement.

The parties attended at an arbitration hearing and provided facts and submissions concerning the outstanding issues. In large measure the facts were in agreement. All of the grievances were from three correctional facilities and I will deal with each in turn.

Barrie Jail

The Barrie Jail was identified as one of the four facilities linked to the privatization of the Central North Correctional Centre (hereinafter referred to as "CNCC") in Penetanguishene. The bargaining unit employees from the Barrie Jail were informed that their rights and entitlements under the Collective Agreement would come from Appendix 18 - Schedule C - Transfers Through Tendering (Service Restructuring) of the Collective Agreement in effect at the salient 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 Barrie Jail access to lateral transfers. There was also an election process to determine employees' eligibility provided in the memoranda of agreement and the classified employees at the Barrie Jail were subsequently given an opportunity to opt into this agreement.

On May 5, 2001 the Ministry announced the successful bidder to operate the new facility (CCNC) in Penetanguishene. On October 28, 2001, the employer released those bargaining unit 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 MERC agreements and who had obtained employment outside of the OPS with the new employer at CNCC or with another employer.

The bargaining unit members who had elected to, and received a lateral transfer to the Barrie Jail transition cost centre, were informed they would not be released at this time as the Barrie Jail continued to house inmates.

Five employees at the Barrie Jail have filed grievances. 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 arising from those grievances. 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 grievors that are relevant to my determination.

The five grievors are employees who had laterally transferred to the Barrie Jail transition cost centre and all had informally notified the employer that they wished to exercise their pay in lieu rights under Article 20, upon receipt of their surplus notice. Each grievor claimed they received employment offers from the new private operator at CNCC. Management at the Barrie Jail had a list of those employees to whom the private operator had made employment offers. However, the Employer did not release these grievors at that time. According to the grievors, the private operator informed them that if they could not be released at such a time 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 grievors have filed grievances claiming that the employer improperly created two surplus dates to their detriment. It was the grievor'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 facility at the same time and then all of the employees would be surplused.

It was the grievor'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 rights as it did and its inappropriate actions disadvantaged the grievors. There would have been sufficient employees to operate the facility if the Employer had allowed the grievors to leave when they requested to do so. Further, the common surplus date referred to in the MERC 1 and 2 agreements was intended to ensure that the employees who elected Article 20 rights wanting to stay in the Ontario Public Service would have reasonable and equitable opportunities at redeployment and bumping provisions. It should not have applied to them because they had informally indicated to the Ministry of their desire to leave.

It was the Employer's position that the grievors could not be released until all of the inmates of the Jail were removed. The Employer had a common surplus date of November 21, 2001, which applied to four transition cost centres, as well as Wellington 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 linked to intermittent and escort function. Further, the Employer suggested that the parties specifically considered this matter in their agreement and it did not breach those provisions. Paragraph 6 found at page three of the MERC 1 states:

The employees will remain at their current work site until the date the institution no longer houses inmates 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 right to create two different dates for release from employment, as contemplated in the MERC 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 rights as captured by MERC 1 and 2 and the collective agreement?

3. Were the grievors disadvantaged by the employer's actions? If so, what remedy is appropriate?

DECISION

The preamble of MERC 1 states:

The parties agree to the following settlement of Union policy grievances dated June 6, 2000 and June 29, 2000, individual and group grievances, listed in Appendix A, regarding Article 31.15 and Article 6, with regard to all CO positions at all institutions. All such grievances filed up to the date of signing of this agreement are settled by virtue of the agreement. The processes identified in this agreement shall commence after the implementation of the Memorandum of Settlement (GSB File #1252/00 et al) signed March 13, 2001. The parties will meet to discuss details of outstanding vacancies and conversions for all positions other than Correctional Officer positions prior to May 1, 2001.

(emphasis mine)

Generally speaking, the MERC agreements are, as previously stated, comprehensive documents that were arrived 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 strived to resolve the grievances that were outstanding at the time and attempted to establish a process that articulated significant rights to employees but provided the Employer the ability to efficiently operate its business. As I understand it, there were, at the time, many major changes that were about to occur in a number of workplaces. Those changes would clearly have a significant effect on all of the employees many of whom had worked in those institutions for many years. A review of the MERC agreements reveals the parties worked diligently 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 obligation 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 facilitate 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 prior to the date that the jail is empty of inmates specifically and very clearly requires agreement between the employer and the employee. The quid pro quo for the employees is that the Employer is obliged to continue their employment at the jail for the same period or, if mutually agreed, allow a temporary assignment elsewhere. It is not surprising that there would be instances when one party wants an end date that is not convenient to and therefore not agreed upon by the other party. Further, there is nothing 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 grievors 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 rights and it is not bad faith if either the Employer or employees insist on those rights.

Finally, regarding the final question at this facility, it might be that some employees were each negatively affected. No doubt that is why grievances were filed. However, the mere finding of an employee being disadvantaged is not sufficient for their grievance to be upheld. In order for this Board to uphold a grievance 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 Vanier Centre for Women (hereinafter referred to as "VCW") will be transferred to the new facility over the next months.

MWDC and HWDC will no longer house adult female inmates. Bed space created by the move will be filled with male offenders. VCW adult units will close when the adult female inmates are moved with the exception of one unit, which currently houses female young offenders, which will remain open at the current Vanier location. It will be known as the Vanier Intermittent Female Young Offender Unit (hereinafter referred to as "VIFYOU").

The Ministry's policy on the supervision of inmates in accordance with the Adult Institution Policy and Procedures manual is as follows:

The ministry's policy with respect to the assignment of male and female correctional officers is designed to be consistent with the Ontario Human Rights Code's prohibition on discrimination on the grounds of sex in hiring and work assignments while demonstrating consideration and sensitivity towards the personal dignity and modesty of inmates.

These objectives are achieved by ensuring an appropriate balance of male and female officers on each shift so that duties requiring officers of the same sex as inmates can be performed routinely (i.e., supervision of showers, escorts, etc...).

In discussion, the Ministry indicated that in order to meet its obligations for female offenders around programming, female inmate privacy and the policy 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.

During the transition of the facilities it was agreed between the Ministry and the Union that a minimum of 75 per cent of the classified correctional officer positions for the new MFI facility for the new MFI facility 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.

The agreed upon proportion of seventy five percent was higher than the female correctional officer percentage had historically been at the only previously exclusively female institution (VCW). That ratio had been less than 70 percent. However, both parties recognized 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 living units will have constant correctional officer supervision during 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 appropriate 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 time female classified correctional officers with less seniority were successful in gaining positions where the male officers had been denied. 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 grievances were filed in this regard.

THE QUESTIONS

1. Is the agreement regarding the minimum percentage of female classified correctional officers, as described in MERC 1, in compliance with the Ontario Human Rights Code and Article 3 of the Collective Agreement?

2. Is the agreement on a minimum percentage of female classified correctional officers, as described in MERC 1, in compliance with the layoff/seniority provisions of the Collective Agreement?

DECISION

Part F of the MERC 1 agreement states the following at page 10:

In order to comply with the ministry's policy on same sex supervision and in compliance 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 Union agreement to the current complements identified in this agreement.

1. After full inmate occupancy, the staffing complement at Maplehurst Female Institution will be a minimum 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 Vanier will be offered Correctional Officer positions in accordance with this agreement.

2. The parties will maintain a minimum 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 seniority. The remaining positions were offered to officers of both genders in descending order of seniority.

As the result of grievances that were filed by correctional officers, the parties have asked if their agreement violates the Human Rights Code or Article 3 of the Collective Agreement.

Employees are protected by statute from discrimination based on a variety of prohibited grounds in the Province of Ontario including gender. Further, Article 3 in the collective agreement between these parties provides that "no discrimination shall be practiced by reason of ….. sex…". In my view, the fact that the Employer and the Union have agreed on a staffing complement that is not equal for both genders does not, in and of itself, violate the Human Rights Code or Article 3 of the Collective Agreement. There has been much jurisprudence in this area and it is not my intention to review it in any detail. It is sufficient to say that the obligation of no discrimination in the workplace does not mean that there has to be gender equality of the workforce. However, there does have to be legitimate, bona fide reasons for policies or practices that tend to favour one gender over another as is being suggested by the grievors in this 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 Rights Code has been violated.

The grievors have also suggested that the minimum percentage of female classified correctional officers violated the lay-off and seniority provisions of the collective agreement. I think not. The Ministry instituted a policy dealing with the issue of same sex supervision and that policy brought about a recognition that in various institutions there is a number of male correctional officer positions and a number of female correctional officer positions. Again, that delineation of positions based on gender is neither discriminatory nor unreasonable in the circumstances. It therefore follows that 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 Unit (hereinafter referred to as "GATU"). Employees were told that GATU was going to be temporarily relocated to the vacated Wellington Detention Centre. After approximately two years in this nearby location it would be permanently located in Brockville. The issue of GATU employee rights upon the relocation to Brockville was unknown at that time.

The inmate population at GATU included a significant number of mentally handicapped and mentally ill inmates. In GATU, the inmates received a greater level of programs and treatment. The correctional staff were assigned responsibility for a small number of inmates in conjunction with treatment staff such as nurses and social workers. No correctional officers or other employees were hired to work exclusively in GATU. While no formal posting existed for GATU correctional officer positions, classified correctional officers could request to be assigned to GATU. As the result of a grievance settlement, individuals would be moved from their GATU position to accommodate new individuals. The correctional officer with the longest period of assignment in GATU would be moved back into the main correctional center. Prior to assuming a GATU assignment an employee would meet with senior staff for orientation about working with mentally ill 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 GATU. Eligible employees were invited to indicate their interest in being assigned to G.A.T.U. If there were more employees interested than available positions assignment decisions were based on seniority. All employees who did not receive an assignment to a GATU position because they were ineligible for a position because of lower seniority or due to a lack of position availability were then offered a position at C.N.C.C. in accordance with Appendix 18.

A small group of industrial employees who worked at G.C.C. for TRILCOR (prison industries) were not included in the RFP for the private prison. Nor were those who had already succeeded in attaining the jobs at G.A.T.U.

After the letters inviting employees to apply to GATU positions were issued and the resulting positions were assigned to senior individuals a decision by the Grievance Settlement Board, chaired by Vice Chair Brown, was released that ordered the number of positions at GATU increased by five. Those extra positions were awarded to individuals who had already indicated their interest in GATU but had not sufficient seniority 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 intermittent work at Burtch Correctional Centre. Those Article 20 positions, which were offered on the basis of seniority, created further GATU vacancies, which in turn were filled from the original election list from November of 2000. For example, a senior correctional officer who had originally 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 seniority. 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 specific to those institutions were offered to Correctional Officers at the three institutions.

It was after these events that the parties negotiated the MERC agreements. The parties agreed that, where possible, correctional officers at the four RFP institutions including GCC were to be offered options to remain in the Ontario Public Service. Prior to the MERC 1 agreement those correctional officers who did not have a GATU position or an Article 20 position had only the options of accepting employment at the private prison or resigning from the public service.

In accordance with the MERC 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 rights.

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 list for all vacancies. These correctional officers were added to those already named on the Ministry lateral transfer list as of the original date of the agreement in April of 2001. When a correctional officer accepted a lateral transfer to another facility from one of the RFP institutions that person did not transfer immediately. In accordance with the agreement, the correctional officer remained at their current facility until the facility 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 the employee was governed by the provisions of the Collective Agreement applicable to their new position.

3. Subsequent to these events, vacancies created in GATU 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 GATU following the November of 2000 process?

It was the Union'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 seniority to have a reasonable chance of attaining one of the positions. Further, circumstances significantly changed after November of 2000. Those employees should have had the right to change their election because there was greater opportunity for junior employees after the MERC 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 opportunities would likely arise allowing more junior employees access to the GATU positions. Indeed, many junior employees elected to accept a GATU position in November of 2000 and were successful. Nothing changed with respect to the ongoing GATU operation other than a slight 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.

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 obliged to re-run the election process for the GATU 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 turmoil 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 this question.

Question #2

Should employees who accepted lateral transfer positions under Part B of MERC have been offered GATU positions during the lateral transfer process? Further, after accepting a lateral transfer position under Part B should employees have been offered GATU position?

It was the grievor's position that individuals who accepted lateral transfer positions should have been offered the option of a GATU position at the time they were offered the lateral transfer position, if positions had become available as a result of Part A.

The Employer submitted that this was not contemplated in the agreement and would have been difficult, if not impossible, to administer. In accordance with the MERC 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 employee's status had the potential to impact on literally dozens of others. Further, if G.C.C. correctional officers who accepted lateral transfers were allowed to take GATU positions after the transfer had been completed they would have been ineligible since their rights 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 opportunity to change their minds during such a complex process would have brought about confusion at best and serious displacement at worst.

Question # 3

Should correctional officers who were assigned to GATU at the time of the election process in November of 2000 been offered positions at the ongoing GATU operation so they could follow their work regardless of seniority?

It was submitted by a number of the grievors 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 GATU positions before more senior individuals who happened to be working in the non-GATU part of G.C.C.

Decision - Question #3

Again, I must find in favour of the Employer in this regard. The history of work assignment in the GATU, which evolved from a resolution to an earlier grievance, was that employees rotated through this area and did not have a permanent assignment. Assignment to that area was dependent on the number of outstanding requests for that work and the seniority of those who wished that assignment. It would be unfair to find that the employees who happened to be assigned to work in GATU during November of 2000 had more right to the positions. Indeed, according to the facts, this was an unusual arrangement whereby junior employees "bumped" senior employees into the G.C.C. Therefore, it is conceivable that the employees in the GATU in November of 2000 were the most junior. To provide them with more rights, indeed ownership of those positions, would simply be wrong.

Question #4

The plan to move the ongoing GATU operation to the unoccupied Wellington Detention Centre did not happen and the operation remains at the former G.C.C. The employees at Wellington Detention Centre were surplused in accordance with Article 20 after the detention centre closed. Should those employees from Wellington Detention Centre have been offered the GATU jobs because GATU was going to be moved to their old building? Would employees at Wellington Detention Centre have had rights to the GATU jobs had GATU moved to their old building?

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 determined that GATU is a "stand alone" institution. The employees at Wellington 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 GCC. 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 Wellington had any right to the GATU work.

In my view, there is no need to answer the second part of this question as it did not occur and there is nothing to be gained from answering such a question in the hypothetical.

Dated in Toronto this 26th day of March, 2003.