HomeMy WebLinkAbout1996-1344.Union.97-01-10I ONTARlO EMPLOY& DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
I
GRIEVANCE CPMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TOPONTO, ONTARIO. M5G lZ8
180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO fONTARIOj. M5G 116
BETWEEN
BEFORE
FOR THE
GRIEVOR
FOR THE
EMPLOYER
TELEPHONE/TiL~PHONE (4 161 326- !388
FACSIMILE/TEL~COPIE (4 161 326- 1396
GSB # 1344/96
OPSEU # 96UO86
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
W. Kaplan Vice-Chairperson
G. Leeb
Grievance Officer
Ontario Public Services Employees Union
S. Patterson
Counsel
Legal Services Branch
Management Board Secretariat
FOR THE K. Billings
THIRD PARTY Counsel
Miller, Thomson
Barristers & Solicitors
HEARING December 6, 1996 January 3, 1997
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Introduction
As is well known, the Government of Ontario has embarked on a
privatization program. On July 14, 1996, the Ministry of Transportation
called for bids on three Area Maintenance contracts for approximately 1500
kilometres of provincial highways in southwestern Ontario. Tendered work
included road patrolling, summer maintenance, minor bridge maintenance,
preservation management, winter snow and ice control and emergency
response. This work used to be performed by Ministry employees.
Requests for Proposals were solicited and six companies bid for the work.
In September 1996, all three Area Maintenance Contracts were awarded o
Integrated Maintenance & Operations Services (hereafter “IMOS”). In the
meantime, the union had filed a grievance alleging a violation of the
following provision of the collective agreement:
The Government is aware that its restructuring initiatives over the next
two fiscal years (1996/97, 1997/98) could have a significant effect on
employees, some of whom have served for a lengthy period. Accordingly,
commencing with the ratification of the collective agreement and ending
on December 31,1998, the Employer undertakes the following:
1 (a) The Employer will make reasonable efforts to ensure that, where
there is a disposition or any other transfer of bargaining unit functions
or jobs to the private or broader public sectors, employees in the
bargaining unit are offered positions with the new employer on terms and
conditions that are as close as possible to the then existing terms and
conditions of employment of the employees in the bargaining unit, and,
where less than the full complement of employees is offered positions, to
ensure that offers are made on the basis of seniority. When an employee
has been transferred to a new employer he/she will be deemed to have
resigned and no other provisions of the collective agreement will apply
except for Article 53 or 81 (Termination Pay).
(b) Where the salary of the job offered by the new employer is less than
85% of the employee’s current salary, or if the employee’s service or
seniority are not carried over to the new employer, the employee may
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decline the offer. In such a case, the employee may exercise the rights
prescribed by Article 24 and/or paragraphs 2 to 5 of this letter. The
employee must elect whether or not to accept employment with the new
employer within three (3) days of receiving an offer. In default of an
election, the employee shall be deemed to have accepted the offer.
The union’s grievance, which sought by way of remedy, among other things,
that the tenders be re-let in compliance with the above-noted provision,
that any detrimentally affected employee be made whole, and that any
resulting surplus notices be rescinded, proceeded, on December 6, 1996, to
a hearing before the Board in Toronto. A number of issues were initially
addressed at this hearing including a contested union subpoena duces tecum
seeking access to certain materials.
Suffice it to say that as these preliminary issues were being addressed it
became clear that IMOS should be notified of the proceeding and of its right
to request that it be added as a party. It is also became clear that the
scope of the union subpoena could not be addressed until after a decision
was reached as to the participation by IMOS. Accordingly, and with the
consent of the parties, the hearing was adjourned. It reconvened on January
3,1997, at which time the Board was advised that IMOS had been accorded
standing on consent. That left the matter of the union subpoena.
Before turning to that matter, it is appropriate to refer to a few other
facts. Among the criteria considered in the bids by the Ministry was
something called the Human Resource Factor (hereafter “HRF”). In brief, and
stated somewhat simplistically for the purpose of this award, bidders were
“encouraged to make offers of employment to employees who are presently
employed by the Ministry” and an HRF was to be determined based on the
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terms and conditions of employment which bidders proposed to offer to
Ministry employees. The HRF was, in short, to be used as part of the
Ministry’s assessment of the overall bid. In this case, 59 of the 61 affected
Ministry employees have accepted employment with IMOS having resigned
their employment with the Ministry.
In its subpoena the union seeks the following documents:
1. All documents,notes, memoranda, reports and files relating to the
tendering of Area Maintenance Contracts 96-01, 96-02 and 96-03.
2. All documents, notes, memoranda, estimates, reports, files and
analyses relating to the Human Resource Factor contained in the Requests
for Proposals for Area Maintenance Contracts 96-01, 96-02,96-03.
3. All documents, notes, memoranda, reports, files and analyses relating
to the impact of the OPS Collective Agreement on the Requests for
Proposals for Area Maintenance Contracts 96-01, 96-02, 96-03.
4. Copies of all submissions/bids received in respect to the Requests for
Proposals for Area Maintenance Contracts 96-01, 96-02, 96-03.
Union Submissions
In the union’s submission, this was an appropriate case to give effect to a
wide-ranging request for documents. Mr. Leeb noted that this was the first
case to proceed before the Board taking issue with one of the government’s
privatization initiatives and it was important, therefore, for this case to
receive a full hearing. While the union made a number of detailed
submissions in support of its request, it is fair to say that the union is of
the view that all of the documents which it sought were arguably relevant
to the issue before the Board. Very simply, the union took the position that
it needed to see all of the documents which it sought so that it could
evaluate whether the Ministry had, in fact, taken reasonable steps to secure
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employment for Ministry employees. The fact that most of the affected
employees ultimately secured employment was not the issue. What was
important was how the Ministry evaluated the HRF, whether it was drafted
in accordance with the requirements of the collective agreement, what
weight the Ministry gave to that factor in evaluating bids and in choosing
between bids, what other terms and conditions of employment were taken
into consideration in evaluating the bids, and how the bids themselves
compared to each other. Seeking these documents was not, the union
argued, a fishing expedition. It was instead a request which the union was
fully entitled to make and one, Mr. Leeb argued, which should be given
effect.
Employer Submissions
In the employer’s submission, the union request was, at its very best, far
too broad and should not be given any effect or, in the alternative, it should
be radically circumscribed. Referring to the various elements of the union’s
subpoena, which employer counsel characterized as a “fishing expedition,”
employer counsel argued that the material being sought went well beyond
what a party could or should be allowed to legitimately request in a case of
this kind. Moreover, the employer took the position that much of the
material being sought, particularly materials which originated from
unsuccessful bidders, was confidential proprietary information that
attracted to it a privilege against disclosure or, at the very least,
demanded extremely limited disclosure and only in accordance with the
strictest terms. There would, counsel observed, be extreme prejudice to
the Ministry, in the pursuit of other privatization initiatives, and to the
bidders who were all in competition with each other, if the confidential
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information the union now sought was ordered disclosed. A number of cases
were cited in support of these and other employer arguments including B.C,
TransitoTechnlcalovees Union 27 L.A.C. (4th) (Bluman) 160, Mount St
Joseph l-&pita1 v. Hospital Fmplovees 1 * Union 19 L.A.C. (3d) 107 (Thompson),
Hilton Works (No. 1) (1993) 4 P.E.R. 12, R.W. Feman Co. v. UFCW 15 L.A.C.
(4th) 294 (Marcotte) and GiddingS 2289/95 (Kaplan).
Finally, the employer took the position that while the third party had status
in this proceeding, it was status of a limited nature in that the remedy the
union sought might affect it. As such, there was a case to be made, and
employer counsel made some submissions on point, that should there be an
order for disclosure of confidential information provided to the Ministry by
competitors of IMOS, IMOS should not, given the need to safeguard the
confidentiality of that information and the prejudice to the Ministry and to
the other bidders by its disclosure, receive copies of any such information.
Submissions of the Third Party
The third party took the position that the union’s production request was
far too broad and, like the employer, argued that it constituted little more
than a fishing expedition. In IMOS’s view, the only issue to be determined
was whether the Ministry took reasonable efforts to place displaced
employees, and the fact of the matter was that the employees had been
placed. Reviewing the various categories of documents now sought by the
union, counsel for the third party argued that they went well beyond what
could be considered arguably relevant and that the Board should not,
therefore, give effect to the union subpoena.
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In the alternative IMOS took the position that the scope of the subpoena
should be narrowed. For example, IMOS did not object to disclosure of that
part of its proposal comprising the HRF. It did object to any order directing
disclosure of financial information unrelated to the HRF; information
which, if publicly available, could detrimentally affect its competitive
position. Furthermore, while IMOS did not necessarily oppose restrictions
being placed on the use of documents obtained by subpoena, it took the
position that as a party to this proceeding it was entitled to copies of any
documents which were obtained; that imposing restrictions on any party to
a proceeding would offend important principles of natural just-ice. Put
another way, IMOS argued that as it was a party to this proceeding, the only
way that it could, as it was entitled to do, fully participate would be if it
obtained the same access to information as everyone else.
Union Reply
In reply, the union made the point that the purpose of its subpoena was not
to obtain confidential business information. The union was not interested in
the competitive secrets of the different bidders. What it was interested in,
Mr. Leeb argued, was information that would assist it as it went about
advancing its already-developed theory of the case which was that the
Ministry had not acted in accordance with the collective agreement. The
fact was that this was a case of first impression; no one knew exactly how
the decision to award IMOS the contracts was made, and no one knew what
steps, if any, the Ministry really took to meet its obligations to the union
and its members. The available facts strongly suggested the need for broad
disclosure and fully supported the union’s request. It certainly would not be
fair, Mr. Leeb argued, to limit disclosure to information about the HRF. Such
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a limitation might, and probably would, fail to capture other relevant
documents illustrating the level of compliance with the collective
agreement, if there was any compliance at all.
Decision
Having carefully considered the submissions of the parties, I have come to
the conclusion that the union subpoena should be given effect, although with
some revisions directed, at least at this time, at somewhat narrowing its
scope. It may be following the disclosure which will now take place
according to the schedule agreed-upon by the parties at the hearing that the
union will wish to renew its request for some of materials not covered by
this award. As noted at the hearing, such a request can be made and the
Board will then hear further submissions with respect to it, and with
respect to whether the granting of such a request would require the
imposition of further terms and/or the possible notification of others that
a matter is proceeding before the Board which may affect their rights.
Before turning to the exact scope of this award, a few comments are in
order. Obviously, this is a most important case as it is the first case to
proceed before the Board in which the union has taken issue with a
Ministry’s compliance with Appendix 14. That fact, standing alone, would
probably not be sufficient to support a broadly worded subpoena duces
tecum. However, that fact along with the arguable relevance of much of the
materials being sought, in accordance with the test used by the Board in
case after case (see J-lyland 1062/89 (Ratushny) and BassQ 2250/90
(Kaplan), supports the conclusion which I have reached that the union’s
subpoena should, subject to the limitations set out below, and in
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accordance with the restrictions mandated in this award, be given effect.
Indeed, it would be fair to say that much of the materials being sought are
self-evidently relevant to the issue at hand.
In particular, I direct that paragraphs #2 and #3 of the union’s subpoena be
complied with. The materials sought therein are obviously of direct
relevance to the alleged collective agreement breach. However, in
complying with this part of the subpoena the Ministry need only provide to
the union those parts of the record which are specifically on point. Put
another way, the Ministry need not provide entire documents but must
provide those parts of all documents in its possession which pertain to the
subject matter of these two paragraphs. As noted above, the union may, if
it later wishes, and in reference to this direction in general, and any
documents provided pursuant to it in particular, seek access by way of
motion before the Board to the severed portion of any document.
With respect to paragraph #l, I am satisfied, based on the representations
of the employer and third party, and applying well-accepted practices of
this Board, that the union request is, in fact, too broad. I am also satisfied
that limiting this paragraph to references to the HRF would be too narrow
for, as Mr. Leeb argued, there may be other employment-related references
in the materials which are directly on point. Accordingly, I direct the
Ministry to comply with this paragraph but to do so by providing those parts
of documents in its possession relating to its “reasonable efforts” under
Appendix 14, relating to the HRF, and relating to the employment and
re-employment of former Ministry employees, including any and all
references to their terms and conditions of employment which may or may
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not be part of the determination of the HRF. As is the case with respect to
paragraphs #2 and #3, the union may, if it later wishes, and in reference to
this direction in general, and any documents provided to it in particular,
seek access by way of motion before the Board to the severed portion of any
document.
With respect to the union’s request in paragraph #4, I am also satisfied that
it is too broadly drafted, at least at this time. While the union is entitled
to seek production of documents, any such entitlement, as employer counsel
noted in his review of the authorities, may, and in this case does, involve a
balancing of interests. To simply accede at this time to the union’s request
for copies of all of the submissions/bids in their entirety might, on any fair
balancing of interests, result in the disclosure of information that could
seriously prejudice the Ministry and the other bidders but not assist the
union in pursuing this case. It appears to be generally agreed among the
parties that the bids do contain confidential financial and other information
the disclosure of which might undermine Ministry privatization initiatives
and which might affect the competitive positions of private interests.
These aspects of the bids do not, at least at this time, appear to have
anything to do with this case. The harm in ordering disclosure of documents
of this kind would appear to far outweigh any benefit in doing so. Simply
put, there is no basis, at this time, to order the disclosure of this
information.
This is not to say that this information will never be ordered disclosed.
What seems appropriate in this case is to direct the disclosure of those
parts of the bids dealing with the HRF and those parts of the bids making
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reference to the collective agreement, compliance with the collective
agreement, and the terms and conditions of employment, considered
generally, of former Ministry employees. While IMOS did not go this far in
its submissions before the Board, it readily indicated its willingness to
disclose that part of its proposal relating to the HRF indicating, at least to
me, that information of this kind is hardly proprietary. But even if it was,
it is directly relevant to the matter before the Board and must be disclosed.
If, following the disclosure now ordered, the union wishes to renew its
request for copies of entire proposals or bids it may do so. I can hear
submissions, at that time, as to whether any of the other bidders need to be
notified of this proceeding and as to what conditions, if any, should be
imposed on the receipt by IMOS, and any other party if other parties are
added to this proceeding, of any additional materials. In the meantime,
IMOS, as a party to this proceeding and in accordance with the principles of
natural justice, shall receive copies of all materials delivered, pursuant to
this order, to the union.
As requested by the parties, should any of them have any questions about
the interpretation of this order before and during compliance they may
request that the Registrar schedule an expedited hearing.
The case will reconvene on the merits on dates to be set.
DATED at Toronto this 10th day of January 1997.
1 i :,/ /
William Kaplan
Vice-Chairperson