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HomeMy WebLinkAbout2014-4973.Pozderka.16-03-18 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-4973 UNION#2014-0536-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pozderka) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Elba Bendo Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Heather McIvor Treasury Board Secretariat Legal Services Branch Counsel HEARING March 9, 2016 - 2 - Decision [1] This matter concerns a grievance dated November 13, 2014, filed by Mr. S. Pozderka. At the hearing on March 9, 2016, I entertained submissions on two Employer motions. In its first motion, the Employer argued that the Union was improperly expanding the grievance by raising the issue of unjust discipline. It argued in the second motion that the grievance does not make out a prima facie case because it only relies on a violation of the management rights provision and not a breach of any other explicit or implicit provision of the Collective Agreement. These preliminary issues were argued on the facts set out in the Union’s particulars which were assumed to be true for the motions. [2] The statement of grievance and the settlement desired in Mr. Pozderka’s grievance read as follows: I grieve the employer has exceeded their authority under Article(s) 2.1 (Management Rights) by making it a “mandatory” requirement as part of the Ministry Design-Build evaluation framework for OPS employees to enter into a contract with the Employer with respect to confidentially. A legal framework that is already an Act of Legislation currently exists which deals with the exact subject matter and the Employer has no authority to make it a compulsory requirement for OPS employees to enter into any contract that adds to, supersedes, or provides substitution, in part, or in whole, for any of the legislated requirements of the Act that deals with the OPS employees’ duty of Confidentiality and further duty to disclose any potential Conflicts Of Interest. Settlement desired: 1. Declaration that the Collective Agreement has been violated. 2. A finding that the Employer is only entitled to rely upon the available legislation in determining the legal obligations towards Confidentiality/Conflict Of Interest and all other existing “mandatory” signed contracts that may be deemed to provide any additional legal implications beyond those of the Act are null &void as the Employer had no legal authority to demand these individualized contracts with OPS Employees. [3] The Union filed particulars that referenced a number of exhibits. The particulars are as follows: 1. In the fall of 2014, the employer assigned the Grievor to work as a Functional Specialist representing Central Region’s Geotechnical Section on a Ministry of - 3 - Transportation’s Design-Build project (“DB project”). The DB projects utilize DB- Expressions of Interest (DB-EOI) process to short-list the number of respondents eligible to participate in the Request for Proposals. 2. The Grievor, along with all other Functional Specialists was required to sign the Confidentiality Agreement and Declaration (“Agreement”) set out in Appendix C of the DB-EOI Evaluation Process & Guideline for Design-Build Projects (Guideline”). Exhibit A, Page 8. 3. The Grievor refused to sign the Agreement on the basis that he felt it violated his rights under the collective agreement. Upon conveying his decision to Management, he was told by Peter Verok, Central Region, regional Director, that the decision to not sign the Agreement may impact his career and his assignment to future DB Projects. 4. The Grievor was taken off the DB project from November 2014 until February 2015. As a result the Grievor was not allowed to participate in the final stages of the design preparation. 5. On November 6, 2014, the Grievor communicated his concerns to Mr. Verok who responded by saying that the Grievor was raising interesting issues that may require some consideration. Exhibit B. 6. On November 13, 2014, the Grievor filed grievance #2014-0536-0003 alleging a breach of Article 2.1 (Management Rights) of the collective agreement. Exhibit C. The grievance alleges that the employer has exceeded its authority under the collective agreement when it implemented a ‘mandatory’ requirement for OPS employees to sign a “Confidentiality Agreement and Declaration” as part of the DB projects. 7. On February 5, 2015, the Grievor once again discussed his concerns with Mr. Verok who stated that the issue raised by the Grievor warranted consideration and that the employer would look into addressing the Grievor’s concerns. 8. On February 6, 2015, Mr. Verok followed-up the conversation with an e-mail which also assures the Grievor that changes will be implemented to the DB projects. Exhibit D, Page 2. 9. On February 9, 2015, the Grievor sent an email to Mr. Verok where he thanked Mr. Verok for looking into the issues brought to his attention. The Grievor explained in his email that his primary concern with the Agreement was that it might legally be deemed to incorporate a contract with the Employer that supercedes or modifies the existing legislation that governs the duty of confidentiality, declaration of conflicts of interest with the OPS and reporting of wrongdoing. Exhibit D, Page 1. In this email the Grievor identified his concern that his decision to not sign the Agreement would be considered an act of insubordination. Therefore, he enclosed an altered Confidentiality Agreement and Declaration. Exhibit E. - 4 - 10. As of the date of these particulars no changes have been implemented regarding the requirements to sign the Agreement for DB projects. [4] Mr. Pozderka is employed in the position of Pavement Design and Evaluation Officer in the Ministry’s Geotechnical Branch. As the particulars note, Mr. Pozderka was assigned to work as a Functional Specialist on a Design-Build project (“DB project”) in the Fall of 2014. This type of project utilizes a DB-Expression of Interest (“DB-EOI”) process in which the Ministry’s Technical Evaluation Team (“TET”) evaluates the DB- EOI and at the completion of the process recommends the three highest scoring respondents to be short-listed to participate in the Request For Proposals stage. Section 4 of a Ministry document entitled “DB-EOI Evaluation Process & Guideline for Design-Build Projects” provides as follows: 4.0 Confidentiality Agreement and Declaration All TET members and observers, or functional specialists that are contacted as part of the DB-EOI evaluation process must sign the Confidentiality Agreement and Declaration outlined in Appendix C. Regional Managers are not required to Complete a Confidentiality Agreement and Declaration, however, they are required to keep confidential, all discussions and shared information related to the DB-EOI evaluation process. In addition TET members are reminded of their duties as Civil Servants under the Public Service Act of Ontario, and in particular the ethical obligations related to conflict of interest as outlined in Ontario regulation 381/07. [5] The Confidentiality Agreement and Declaration (“the Agreement”) is the contract referenced in Mr. Pozderka’s grievance and the one he refused to sign. The substance of the Agreement provides as follows: Confidentiality Agreement and Declaration I acknowledge that I had access, in whole or in part, to the Ministry of Transportation’s cost estimate, and respondent submissions for DB Project No:2014-2009 and that this access was granted to me on the basis of a trust, requiring the utmost secrecy. I further understand that all the information and documents provided to me or acquired by me in the course of my work on the Contract are confidential. I further affirm that I have taken an oath of secrecy as a civil servant, whereby I swore to faithfully discharge my duties and not disclose to any person any information or document that comes to my knowledge or possession by reason of my duties. - 5 - I agree that all confidential information and documents disclosed to me in connection with my work assignment on the Contract shall be held by me in strictest confidence and that I shall not at any time disclose any such confidential information or document to any person, without the written authorization of the Ministry. This understanding shall survive my work assignment for the Contract. I acknowledge that I have been informed of and that I understand the nature of the confidential information and documents that I may be given during my work assignment on the Contract. I further understand that the Ministry is entitled to protect its interest in maintaining the confidentiality of the information and documents in any way it deems fit. I commit to the selection schedule and deadlines set out in the DB-EOI Evaluation Guideline for this project. I commit to keeping confidential, project approaches/intellectual property brought forward by unsuccessful respondents that were not previously identified by the Ministry in advance of DB-EOI closing. In addition, the following declarations are acknowledged for members (or observers) of the Technical Evaluation Team, (TET) for this project: - Confirmation that I have reviewed and understand the DB-EOI, and all bid enquiries for the project, - Confirmation that I have reviewed and understand the evaluation guideline and process for DB-EOI. - Confirmation that I have reviewed and understand specific categories/sub- categories and their weighting for each DB-EOI scoring category, - Confirmation that I have reviewed and understand the project goals and their function in the evaluation. [6] Mr. Pozderka refused to sign the Agreement and he was taken off the DB project from November 2014 until February 2015. In an email dated February 9, 2015, to Mr. P. Verok, Regional Director, Central Region, Mr. Pozderka expressed the opinion that his refusal to sign the Agreement “could potentially be viewed as an “insubordinate action” as the sign-off was presented to me as being a “mandatory” requirement.” He went on in the email to express a concern about how the refusal to sign the Agreement might affect his involvement in future DB assignments. He attached to the email an amended Agreement that met his concerns. On the day before the hearing, the Union advised the Employer that the removal of Mr. Pozderka from the DB project constituted unjust discipline under article 21.1 of the Collective Agreement. - 6 - [7] It was on the basis of this factual context that counsel made their submissions on the Employer’s motions. I will reference the submissions where necessary in my reasons. In support of her submissions, Employer counsel relied on the following decisions: OPSEU (Marinelli) and Ministry of Natural Resources (1990), GSB No. 1978/89 (Kirkwood); OPSEU (Labanowicz) and Ministry of Transportation (2014), GSB No. 2012-3224 et al. (Lynk); OPSEU (Dobroff) v. Ontario (Ministry of the Environment), [2008] O.G.S.B.A. No. 73 (Dissanayake); OPSEU (Bousquet) and Ministry of Natural Resources (1991), GSB No. 541/90 et al. (Gorsky); and Re OPSEU (Couture) and Ontario (Ministry of Government Services) (2011), 206 L.A.C. (4th) 353 (Dissanayake). [8] In addition to referring to the Disclosure Procedures (sections 111 to 121) in the Public Service of Ontario Act, 2006 (“PSOA”) and Ontario Regulation 281/07 of PSOA which deals with conflict of interest rules for public servants, Union counsel referred me to the following decisions: OPSEU (Whan) and Ontario (Ministry of Transportation), [2007] O.G.S.B.A. No. 7 (Dissanayake); Canadian National Transportation Ltd. v. CAW-Canada, 2005 CarswellNat 7257 (M. Picher); Blouin Drywall Contractors Ltd. v. C.J.A., Local 2486, 1975 CarswellOnt 827 (Ont. CA); and, Hydro Ottawa Ltd. v. I.B.E.W., Local 636, 2007 CarswellOnt 2209 (Ont CA). [9] I will first address the Employer’s motion on the discipline issue. The Employer’s first position on this issue was that the Union was improperly expanding the grievance by raising the matter of unjust discipline on the day before the hearing. In the alternative, the Employer argued that Mr. Pozderka had not in fact been disciplined. Employer counsel noted that what had occurred was that Mr. Pozderka’s assignment of work had been changed; he did not suffer any financial losses and there was no discipline recorded against him. Union counsel argued that Mr. Pozderka’s removal from the DB project for refusing to sign the Agreement amounted to a penalty and therefore constituted discipline under the Collective Agreement. She also noted that Mr. Pozderka had a concern that his failure to sign the Agreement might affect his involvement in future DB projects. I find it unnecessary to decide whether removing Mr. Pozderka from the DB project constituted unjust discipline because, even if it did, I find - 7 - that the raising of the issue of unjust discipline just prior to the hearing does amount to an improper expansion of Mr. Pozderka’s grievance dated November 13, 2014. [10] In OPSEU (Labanowicz), supra, the Vice-Chair addressed the test and the circumstances that are relevant when deciding whether there has been an improper expansion of a grievance as follows at p. 9: [21] The accepted test when determining if a claim raised subsequent to the filing of the grievance can be adjudicated as part of the live grievance goes to whether it can be reasonably construed to be an inherent part of the grievance, or whether it is a truly different and distinct claim: OPSEU (Jones et al) and Ministry of Labour, supra. The test is objective. [22] When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance; (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra. [11] The language of the grievance and a review of the remedy sought suggest that the focus of Mr. Pozderka’s grievance was not on unjust discipline. The essence of the grievance is that management exceeded its authority under the management rights clause when it made the signing of the Agreement a mandatory requirement. The remedy sought is a declaration and a finding, in essence, that management cannot compel employees to sign mandatory contracts like the Agreement. There is no indication before me that the subject of unjust discipline was discussed during the grievance procedure. There is no indication in the November 2014 and February 2015 emails between Mr. Pozderka and Mr. P. Verok that Mr. Pozderka raised an issue about his having been removed from the DB project or that he raised an issue about any action taken by the Employer following his refusal to sign the Agreement that amounted to a penalty or unjust discipline. Mr. Pozderka’s comments in the February 9, 2015 email that his refusal to sign the Agreement “could potentially be viewed as an - 8 - ‘insubordinate action’” and that it might affect his future involvement in DB projects come no where close to an indication that he had actually been disciplined by the Employer. In these circumstances, there is no way the Employer reasonably could have understood that a claim of unjust discipline was a part of Mr. Pozderka’s grievance. I agree with Union counsel’s submission that a grievance should be interpreted liberally. However, in my view, the claim of unjust discipline that was raised at the last moment is a different and distinct claim and not an inherent part of Mr. Pozderka’s grievance dated November 13, 2014. Therefore, the Employer’s objection to the Union’s claim of unjust discipline is well founded and such a claim cannot be addressed as part of this proceeding. [12] The Employer’s second objection is based on its contention that the GSB is without jurisdiction to review the exercise of a management right, in this case the right to require certain employees involved in the DB-EOI evaluation process to sign the Agreement, unless it can be established by the Union that the exercise of the management right impacted directly or indirectly on a collective agreement right. The Union did not argue that the exercise of the management right in this case was discriminatory or in bad faith. The GSB has been quite clear in its decisions that it does not have a free standing jurisdiction to review the exercise of a management right for reasonableness. The Union did not point to any provision of the Collective Agreement that directly or indirectly addressed confidentiality. The thrust of the position advanced by Mr. Pozderka and the Union is that the Employer action of requiring an employee to sign the Agreement is prohibited by an employment related statute and a regulation, specifically the PSOA and Regulation 381/07. It is fair to say that the exercise of a management right must not be contrary to the law. [13] A reading of the Agreement suggests, for the most part, that the Employer’s purpose in requiring an employee to sign the Agreement was to reinforce the obligation to keep information acquired through the DB-EOI evaluation process confidential. During her submissions, Union counsel noted Mr. Pozderka’s concerns with a number of the specific provisions of the Agreement. He claims that the first paragraph is inaccurate because he did not have access to the Ministry’s cost estimates. He claims - 9 - that paragraph 4 interferes with his ability to do his job in that he can only discuss the project with public servants who have signed the confidentiality agreement. This prevents him from collaborating with other public servants, even his Supervisor. He claims that paragraph 5 is untrue because he had not been informed of the nature of the confidential information he would be given. With respect to paragraph 7, Mr. Pozderka claims that he did not know whether the selection schedule or deadline would be adhered to. He claims that he was unclear as to the meaning of paragraph 8. With respect to the first point in paragraph 9, he claims that he could say that he had reviewed all bid inquiries. Even if these concerns were all well-founded, it is my view that they cannot form the basis of a challenge to the management right at issue here. None of these concerns contravene a provision of the Collective Agreement and they do not raise an issue of legality. As counsel for the Employer conceded, the wording of the Agreement is not as clear as it perhaps should be. This may by one of the reasons why the Employer will soon no longer require an employee to sign the Agreement. However, these types of concerns do not provide the basis for challenging the exercise of a management right. [14] The more fundamental concern Mr. Pozderka has with the requirement to sign the Agreement is the one he identified in his grievance. In effect, he claims that the Agreement is unnecessary and that the Employer does not have the right to make it mandatory for him to sign it because there is a legal framework in place which deals with the exact subject matter. He claims that the Employer does not have the authority to require an employee to enter into an agreement that “adds to, supersedes, or provides substitution… for any of the legislated requirements of the Act that deals with an OPS employee’s duty of Confidentiality and further duty to disclose any potential Conflicts Of Interests.” I can appreciate the point Mr. Pozderka is making. He in effect asks why is there the requirement to sign a confidentially agreement when there is already a legal framework that addresses the relevant issues. It is a fair question and perhaps another reason why the Employer will soon eliminate the requirement to sign the Agreement. Although it is a fair question, the fact that there is a legal framework in place is not a basis for challenging the Employer’s management right to require an employee to sign the Agreement. There is nothing in the Collective Agreement which - 10 - provides that the Employer cannot require employees to sign an agreement confirming their confidentiality and other obligations. And in my view, there is nothing in the Agreement which is in conflict with the relevant statutory provisions such that one can conclude that the provisions of the Agreement are contrary to the law. Union counsel submitted in particular that the Agreement limited the disclosure of confidential information in situations of wrongdoing and therefore contravened sections 114 and 116 of PSOA. Section 5. (1) of Regulation 381/07 provides that a public servant shall not disclose confidential information unless authorized to do so by law or by the Crown. Paragraph 4 of the Agreement requires an employee not to disclose confidential information without the written authorization of the Ministry. It was submitted that a refusal by the Ministry to disclose confidential information where it was necessary to disclose confidential information to report wrongdoing would place an employee who signed the Agreement in an impossible situation. I do not agree. In my view, a condition that an employee can disclose confidential information if required to do so by law has to be an implicit term of the Agreement. Such a condition is not dependent on Ministry authorization. In any event, the specific provision in section 5. (1) of Regulation 381/07 permitting a public servant to disclose confidential information if authorized to do so by law would override the more limited provision in the Agreement. [15] I have no doubt that Mr. Pozderka strongly believes that the Employer exceeded its authority when it required him to sign the Agreement. It appears that his concern about not signing the Agreement led him to take the time and make the effort to revise the Agreement. His concerns about the Agreement may have been a factor in influencing the Employer to revisit the necessity of requiring certain employees involved in the DB-EOI process to sign the Agreement. My task here is not to determine whether management exercised its authority wisely or correctly. My task in this matter is only to determine whether the Union has made out a prima facie case in its claim that the Employer’s exercise of a management right resulted in a contravention of the Collective Agreement. For the above reasons, I am satisfied that the Union has not made out such a prima facie case. - 11 - [16] Accordingly, both Employer motions are allowed. The Union is not entitled to pursue the issue of unjust discipline in this proceeding because its recent claim in this regard constituted an improper expansion of the grievance. I am also satisfied that Mr. Pozderka’s grievance alleging a violation of the management rights provision does not make out a prima facie case of a violation of the Collective Agreement. Accordingly, Mr. Pozderka’s grievance dated November 13, 2014, is hereby dismissed. Dated at Toronto, Ontario this 18th day of March 2016. Ken Petryshen, Vice Chair