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HomeMy WebLinkAbout1998-0320.Union Grievance.99-10-12 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 0320/98 OPSEU # 98U073 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 Transportation) Employer BEFORELoretta MikusVice Chair FOR THE Richard Blair GRIEVORCounsel, Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THESunil Kapur EMPLOYERCounsel, Legal Services Branch Management Board Secretariat HEARINGSeptember 28, 1999 2 These grievances arise from a Ministry of Transportation (MTO) decision to outsource some of its work at the New Liskeard location. The background to these grievances is best described by Arbitrator Dissanayake in a previous arbitration between the parties (August 13, 1998) as follows: The Ministry of Transportation issued 6 area maintenance contracts (AMC=s) with a view to privatizing certain work hitherto performed by OPS employees, work such as road patrol, road surface and shoulder maintenance, drainage and vegetation management. A Request for Proposals (RFP) was issued May 27, 1998. According to the employer=s understanding of its obligations as gleaned from previous Areasonable efforts@ decisions of the Grievance Settlement Board, the employer included three parts in the Human Resources Factor (HRP) of the RFP, namely, Mandatory Requirements, Rated Requirements and the Human Resources Incentive Fund. Any proposal that did not meet each of the mandatory requirements was to be disqualified. The mandatory requirements were: The proponent was required to make job offers to all OPS employees affected by the privatization; such job offers had to include at least 85% of each employee=s current OPS salary; Each employee=s service with the OPS to be recognized for purposes of vacation and benefits; and a job offer could not include any probationary period. ... Pursuant to this RFP the Ministry selected a company called Integrated Maintenance and Operations Services Incorporated (IMOS) as the successful proponent. IMOS consisted of 6 shareholder companies, which had a combined workforce of between 3500 to 4000 employees. 41 Ministry employees were included in the RFP as affected employees. However, subsequently 2 were removed. The remaining 39 employees were to be transferred to a company known as Miller Maintenance, one of six companies in the IMOS Group. The existing Miller workforce was not unionized. Following the announcement of the successful proponent, the union filed a grievance dated May 31, 1998 alleging that the Ministry had violated Appendix 9 of the collective agreement with regard to the 6 Area Maintenance Contracts. AMinutes of Settlement and Release@ were executed on June 26, 1998 with regards to this grievance which read as follows: THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (AOPSEU@) 3 AND THE CROWN IN THE RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF TRANSPORTATION (AMINISTRY@) MINUTES OF SETTLEMENT AND RELEASE The Parties agree to resolve all matters arising out of the grievances referred to by GSB # 0320/98 and OPSEU #98U073 on a without prejudice and precedence basis as follows: 1.The Ministry will be permitted to close its call for tender and/or RFP=s, evaluate, announce the preferred bidder and begin implementation with regard to the following Area Maintenance Contracts. These AMC=s will close on the dates specified below: ( a )AMC 98-10July 8th, 1998 ( b )AMC 98-02July 8th, 1998 ( c )AMC 98-03July 8th, 1998 ( d )AMC 98-04July 8th, 1998 ( g ) AMC 98-05July 22, 1998 ( f )AMC 98-06July 22, 1998 2.OPSEU agrees that the mandatory criteria and the HRIF evaluation criteria included in the AMC=s are sufficient to meet the Ministry=s reasonableness efforts up to that part of the process and releases the Ministry from all liability in relations thereto. 3.The parties agree that this Ministry remains obligated to negotiate with regard to the HRIP as stipulated in the RFP. Therefore, the parties agree to the following process in relation thereto: With regard to AMC=s ( a ) to ( d ), OPSEU will be provided with a 5 day period between August 10 and 31, 1998 within which to review the efforts that the Ministry has undertaken in relations to the HRIP. If OPSEU has any concerns with regard to the Ministry=s efforts in relations thereto, OPSEU may refer the matter to mediation/arbitration within that 5 day period and the matter must be dealt with and completed within this time frame. With regard to AMC=s ( e ) and ( f ), OPSEU will be provided with a 3 day period between August 24 and September 11, 1998 within which to review the efforts that the Ministry has undertaken in relation the HRIF. If OPSEU has any concerns with regard to the Ministry=s efforts in relation thereto, OPSEU may refer the matter to mediation/arbitration within that 5 day time period and the matter must be dealt with and completed within the time frame. 4.The parties agree that the following employees shall receive their surplus notices on or about the start date of the contract. Those are employees who have pension options on the start date of the contract. Peter Jackson Bruce Kydd H.J. McMillan Ray Dillabough N.R. Clark Wendall Webster 5.The parties agree that the employees set out in paragraph 4 shall be removed from the RFP=s and further agree that any other similarly eligible employees, if any, shall be treated in the same manner as specified in this paragraph and 1 above. 6.The employees listed in paragraph 4 and other similarly situated employees, if any as referred to in paragraph 5 shall forthwith elect to retire or pension bridge, pursuant to paragraph 2 or 3 of Appendix 9, which ever article is applicable to that employee and will exercise no other rights under Article 20 except as provided in paragraph 2 or 3 of Appendix 9. 7.OPSEU releases the Ministry from all liability with regard to the provisions of paragraph 5 of Appendix 9. 8.Any dispute with regard to the implementation of this agreement shall be referred to the GSB. Subsequently on July 27, 1998, the Ministry entered into negotiations and came to an agreement with IMOS as to terms and conditions of employment for the 39 Ministry employees who were being made job offers. On August 10, 1998 the union was provided a copy of the agreed to terms and conditions which were executed on August 9, 1998. The union did have concerns about the Areasonable efforts@ on the part of the Ministry and those concerns were referred to the GSB pursuant to Para. 3 of the Minutes. I was seized with the union=s concerns as they related to 4 of the 6 Area Maintenance Contracts. After considering the history of the negotiations leading to the contract with IMOS, Arbitrator Dissanayake stated: The Board is satisfied that the Ministry made reasonable efforts during the HRIF negotiations stage considering the particular circumstances it faced. Using the funds available, the Ministry was able to enhance a number of terms and conditions. In some others it was not as successful. That was not indicative of a failure to make reasonable efforts. Before me are several grievances arising from that fact situation, most of which give rise to preliminary issues including the admissibility of evidence of negotiating history, whether the Ministry is estopped from objecting to the individual grievances, whether the grievors can challenge the placement of their names and positions on the RFP and whether the offer made to the employees in any event complied with the terms of the agreement requiring a job offer at least equal to 85 % of the employees= previous wages. Finally there is an issue about whether I am bound by an oral ruling by Arbitrator Dissanayake in the hearing for the above noted award. Dealing first with the issue of estoppel and the admissibility of negotiating history, the Union took the position that, during the Stage 2 grievance meeting of the grievance before Arbitrator Dissanayake, the Union clearly told the employer that it could not agree to any settlement that precluded individual members from grieving alleged violations of the collective agreement. The grievance was denied and at a later stage in the grievance process, the Minutes of Settlement and Release reproduced above were executed. The Union asserts that the employer was put on notice that the Union would not sign away individual rights and that the Minutes of Settlement and Release were signed on that basis. The employer is now estopped from asserting its rights in the circumstances. The Ministry argued that no estoppel exists in this case. Even if the Union did refuse to settle the original grievance at stage 2 without an assurance that individual grievances would survive, once the grievance was denied and processed to the next stage, any offers of settlement made or positions taken during that process were confined to that stage. When the parties resumed negotiations, neither was bound by any earlier statements. The Union did not renew its position during the negotiations leading to the Minutes of Settlement and Release. The Minutes were not subject to any previous positions or statements by either party. If an employer was estopped from asserting its rights because of a comment made at an earlier meeting that was never repeated or renewed, it would be loath to make any offers in the future. That, it was argued, makes very bad labour relations sense and should not be adopted by this Board. I agree with the position of the Ministry. The negotiations during the stage 2 grievance meeting would, in the normal course of events, never be divulged to a Board of Arbitration. The reasons for that are obvious. If the positions advanced or offers of settlement made at a grievance meeting surfaced at a later stage of the process, the parties would simply refuse to make any statements or offers that might prejudice their position at arbitration. The result will be fewer settlements and longer litigation. The parties have agreed for that reason that those discussions are privileged and cannot be relied on at arbitration. In this case the discussions are being relied upon to found an estoppel and therefore must be disclosed. Nevertheless, the principles concerning the privileged nature of grievance procedure discussions cannot be ignored and any decision to admit those discussions must be made with those principles in mind. The Union alleges that its position at stage two was clearly communicated to the Employer and thus creates an estoppel. However, there is no evidence before me that the Union reaffirmed that position at any time during the negotiations for the Minutes of Settlement and Release. There is no evidence before me that those minutes were subject to any conditions. The position of the Union during the stage 2 meeting were rejected by the Employer. The Union acknowledged that rejection by advancing the grievance to the next step. At that point, all offers and admissions were off the table. Once the negotiations renewed, it was up the parties to ensure that their positions were clear. The Union did not renew its position and the negotiations were concluded on that basis without qualifications or conditions. The Union also took the position that the language of the Minutes of Settlement and Release were ambiguous and that the Board should hear extrinsic evidence of the bargaining history to determine the intention of the parties. The Ministry took the position that extrinsic evidence is admissible only where the document at issue contains an ambiguity, latent or patent, that requires additional evidence to give meaning to the words used. In this case, it was argued, the words of the Minutes of Settlement and Release are clear. The agreement resolves Aall issues arising out of the grievances referred to by GSB # 0320/98". It specifically states that the employer has met its Areasonable efforts@ obligations under Appendix 9 and Areleases the Ministry from all liability in relation thereto@. (My emphasis) If the Union continued to have concerns about the reasonable efforts, it had 5 days to refer the matter to mediation/arbitration. It did not. The fourth paragraph of the Minutes identifies by name 6 individuals who were to be surplussed. Those 6 were the only ones removed from the RFP. The fifth paragraph specifically releases the Ministry from all liability with regard to paragraph 5 of Appendix 9. The Union contended that the ambiguity lies in the fact that there is no mention of individual grievances related to the implementation of the job offers that involve individual fact situations that could not be the subject of a union grievance. That may be, but the parties did foresee the potential for problems when it agreed in paragraph 8 that any dispute about the implementation of the agreement could be referred to the GSB. In drafting the document, the parties did not use restrictive language in describing their intentions. They did not say that the Minutes settled the grievances but rather that the Minutes settled all matters arising out of the grievances. They did not merely sign Minutes of Settlement but rather Minutes of Settlement and Release. (my emphasis). Clearly the parties intended this document to be a complete and final resolution of all matters related to the Union=s grievance #0320/98. That, in my view, included individual grievances of matters arising from grievance #0320/98 related to the AMC and RFP=s referred to above. That does not, however, preclude a Board at the GSB from hearing dispute regarding the implementation of the Minutes and any allegations of bad faith in its application. It is clear from the very title of the Minutes of Settlement and Release that the parties intended this document to completely resolve all matters related to these AMC= s so that the Ministry could get on with its outsourcing. They used words intended to convey that message. They agreed to resolve Aall matters arising out of grievances # 0320/98" and to release the Ministry from Aall liability in relation thereto@ (that is to reasonable efforts), and finally that the Union released the Ministry from Aall liability with regard to the provisions of paragraph 5 of Appendix 9". The document is clear, the words used in the document are clear and the intention of the parties is clear. There is therefore no need to admit extrinsic evidence. The next issue deals with an oral ruling made by Arbitrator Dissanayake in the August 13, 1998 decision between these parties. During the hearing, Mr. Leeb, for the Union, advanced the argument that certain individuals were placed on the RFP but their work did not leave the Ministry. Mr. Dissanayake ruled orally that the Union could not go behind the RFP because the placement of an employee on it was a management right and not subject to a challenge by the Union. The Ministry took the position that this Board is bound by that ruling in the same way a panel of the Grievance Settlement Board is bound by previous decisions on similar matters. The Ministry took the position that the issue is res judicata. The Union asserted that this Board can overturn a previous decision of the GSB if the original decision is manifestly wrong or if special circumstances exist that warrant a different result. It was argued that any management decision can be attacked if it is alleged to have been done in an arbitrary, discriminatory or bad faith manner. It was argued that, if Arbitrator Dissanayake meant that no management right can ever be challenged, he was clearly wrong and this Board is not bound by his ruling. If the Ministry is suggesting that Boards of Arbitration should be bound by oral rulings in other proceedings, I disagree. When an arbitrator is presented with case law in support of a position, the fact situation is usually set out in detail. The reasons for the ruling are set out so that the underpinnings for the decision are clear. In deciding whether to follow that ruling, an arbitrator can compare those circumstances to the fact situation before him/her to determine whether it is applicable. During hearings, numerous evidentiary decisions are made that are never reduced to writing and the reasons are never reproduced in full. It would be simply wrong to bind one Board to the oral rulings of another in those situations. It would require an arbitrator to blindly accept one party=s version of the rulings of another arbitrator without all of the information necessary to properly consider the matter before him/her. That would be an abrogation of an arbitrator=s responsibility to hear and determine the issues before him/her and open to challenge at a higher level. The oral ruling by Arbitrator Dissanayake is not binding on me. The issue then of the right for individual employees to question their placement on the RFP has not been determined by the Dissanayake Board. The last issue before me concerns three employees who received an offer of employment from IMOS that they claim does not meet one of the mandatory requirements of the RFP. The agreement reached between the Ministry and IMOS required IMOS to make job offers to all designated employees consisting of AAat least 85% of the respective employees== salary as set out in Schedule D@. Schedule D contains a list of job classifications, seniority dates, weekly salaries and locations. Based on that list, Mr. Kelly Beagan received an offer of employment from IMOS dated September 1, 1998 which quoted his salary as being $18.33 per hour or $733.60 per week. According to his calculations, $18.33 an hour times 40 hours per week equalled $733.20 per week or 84.992% of his current salary. The letter stated that his hourly rate equalled $733.26 per week or 84.999% of his weekly salary of $862.66. Mr. John Quehe received a similar letter setting out the same salary offer of $18.33 per hour or $733.26 per week or 84.99% of his current salary. Mr. Michael Ethier received an offer of employment quoting a salary of $16.38 per hour or $655.52 per week. According to his calculations the hourly rate quoted equalled 84.95% of his salary. The weekly rate equalled 85%. On September 3, 1998, each of them received similar letters revoking the September 1st letter and replacing it, in the case of Mr. Quehe and Mr. Beagan, with a new job offer of $18.34 per hour or $733.60 per week. Mr. Ethier=s new salary offer was $16.39 per hour or $655.60 per week. On September 9, 1998, the grievors accepted the job offers Aunder duress and without prejudice@. They also filed grievances alleging that their rights had been violated under Appendix 9 of the collective agreement. They took the position that, since the IMOS job offer does not meet the mandatory requirements of the RFP, they are entitled to be surplussed and to claim their full severance rights under Article 20. The Ministry took the position that there has been no breach of the agreement. The offers were so close to the required 85% so as to make the grievor=s claims meaningless. In the alternative, if IMOS was in breach of its agreement to offer employees 85% of their salaries, the only redress for the grievors is to ask this Board to order IMOS to comply with the terms of its agreement with the Ministry. There are no additional rights because the issue is a breach of the AMC between the Ministry and IMOS, not the collective agreement. The Union argued that, once the job offers fell below at least 85 % of their current salary, certain rights were triggered which are not insignificant. The right to be surplused under Article 20 is a serious right that should not be dismissed as meaningless. The parties have established a threshold. A failure to meet that threshold, by a little or a lot, opens the door for these grievors to claim rights they would not otherwise be entitled to. These offers clearly fell below that threshold and the grievors would like an order from this Board validating their Article 20 rights. None of the issues arising out of the reasonable efforts obligations under the collective agreement are irrelevant or insignificant. Some employees will lose their jobs. Other employees will be offered jobs at 85 % of their previous rate. The requirement to accept a job offer or be deemed to have quit forced some employees to accept offers of employment when they would have rather been allowed to leave with their Article 20 rights. From the government=s perspective, continued opposition to these RFP=s and AMC=s has resulted in costly delays and extended negotiations with the proponents. It has been difficult for everyone. Not surprisingly, in this case, when the grievors saw an opportunity to claim Article 20 rights because their job offers did not meet the mandatory requirements, they decided to take advantage of what they saw as theirs under the collective agreement. The degree to which the offers fell below the threshold was of no concern to them. Only the fact that they did was important. However, in these circumstances, their grievances must be dismissed. The job offers were made and rescinded before the grievors had an opportunity to reject or accept them. If they had rejected the job offers and asserted their Article 20 rights before the offer from IMOS was revoked, different consideration might have applied. The fact is, the first job offer was revoked before it could be accepted and was replaced by a job offer that was within the mandatory requirement of 85% of their salary and therefore was in compliance with the AMC. The grievors cannot rely on a job offer that is no longer on the table. DECISION The Union=s motion to admit evidence of the negotiating history related to the Minutes of Settlement and Release is dismissed. The oral ruling of Arbitrator Dissanayake with respect to this issue of improper placement on the RFP is not binding on this Board. The grievances of Mr. Breagan, Mr. Quehe and Mr. Ethier are dimissed insofar as they relate to the issue of the mandatory offer of 85% of salary. Dated at Toronto, this 12th day of October, 1999 Loretta Mikus, Vice Chair