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HomeMy WebLinkAboutUnion 06-05-16 IN THE MATTER OF AN ARBITRA nON brought pursuant to the Ontano Labour Relations Act, 1995 (Dmon Grievance re contracting out #2005-0431-0019 and Dmon Gnevance re illsc10sure #2005-0431-0014) BETWEEN PROVIDENCE CONTINUING CARE CENTRE (MHS) (the "employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "umon") AWARD Sole Arbitrator Marilyn A. Narrn Heanng held. May 15, 2006 Kmgston, Ontano APPEARANCES For the umon. Enc O'Bnen For the employer Ron Pearson AWARD These matters convened on May 15, 2006 The parties agree that two gnevances are before me, The first alleges a violatlon of the contracting out prOVISIons of the collectlve agreement. The second alleges a VIolatron of Article 14.3 of the collectlve agreement. The parties are further agreed (subject to the Issues addressed below) that I have the jurisdIction to hear and determme these gnevances. Certam prelinnnary matters were raised. I heard the representatlons of the parties With respect to those prehminary matters and Issued an oral ruhng. The language of the collective agreement which pnmarily gives nse to the prehmmary issues provides as follows: 9 1 The Hospital shall not contract out work usually performed by members of the bargaining unit, which directly causes or results in a layoff, loss of seniority or service or reduction in benefits to members in the bargaining unit. The employer took the pOSItron that the umon had failed to proVIde suffiCIent partIculars and, as a result, I had no JUflsdIction to entertain the matter as no "dIfference" between the partIes had been dIsclosed. In the alternanve, the employer argued that it was an appropriate case to dismiss given that lack of partIculanty The union dtsputed those assertIons and, in ItS turn, sought production of vanous documentary materials relating to the contractual relatronslnp between the employer and a wmdow washing contractor and copIes of schedules for May to August of 2005 The umon alleged that the employer had contracted out window washing work m the summer of 2005 It further alleged that this was work hIstoncally performed by employees of the housekeeping department and/or summer students, all members of the bargammg unit. Finally, the umon alleged that the redtrectIon of this work, although not resulting m a layoff, dId result m a loss of seruority and/or SerVIce and/or a reduction m benefits to its members, partIcularly to part-time and/or temporary employees in the bargaining unit. The union alleged that the loss of oppOrtunIty to perform thIs work was sufficient in the circumstances to :find a VIolatlon of Artlcle 9 1 The employer dIsputed that mterpretatlon, allegmg that Article 9 1 was a security prOVIsion and that there had been no actual loss to any employee. My ruhng on the prelnninary issues is set out below Dealing first with the employer's position, particulars are, as the employer argues, the 'who', 'what', 'where', and 'when' of the matter alleged. The umon has alleged that the employer contracted with a company referred to as "Bubbles" for purposes of performing window washing work on the employer's premises in the summer of 2005 in violation of Article 9 1 of the collective agreement. The employer does not dispute receiving that information and understanding that allegatiOn. There appears to be little dispute that the employer did enter into such a contract and window washing work was performed for a J 2 short period m August 2005 The employer seeks further particulars regarding the nature of the loss to the bargaining unit, specifically with respect to the latter words used in Article 91 The bargaining unit is comprised of full-time, part-time, and temporary employees. Although the union has not asserted that a layoff resulted from the employer's actions, the union has identified that it is assertmg that there was a loss of work to members of the bargaimng unit, and that such work was "usually performed by members of the bargaining unit" In the union's asserted interpretation of Article 9 1 the violation arises from the mere redirection of the work to persons outside the bargaining unit and effectively relies on an interpretation of Article 9 1 that captures the lost opportunity to perform the work. The employer disputes that Article 9 1 can properly be interpreted as broadly as the union alleges. That is the nub of the dispute between them. However it has been provided with the particulars of the nature and scope of the union's allegations. The arbitral scheme is one that seeks, fundamentally, to deal with the merits of disputes between the parties. The Re Calgary Roman Catholic Separate School District decision [(1978) 19 LAC (2d) 363 (Mason)] referred to by the employer supports the proposition that an arbitrator should "endeavour to avoid being over-technical" [page 4]. The Interfor v IWA decision [[2001] B C CAA.A. No. 399 (Hope)], also relied on by the employer, is distinguishable in the circumstances. The grievance before me is not a case "where no issue is pleaded" [page 24] The union here has clearly put forward particulars of its allegation. While the union at this stage has not specifically quantified the loss in the absence of reviewing the documents it seeks through its production request, that matter goes more to remedy and may be revisited if necessary Thus I find that trus is not a case where either I have no jurisdiction or the union has failed to provide sufficient particulars such that the matter may properly be dismissed. The employer has sufficient particulars to be able to respond to the allegations directed against it. Therefore I find that I have the jurisdiction to entertain the contracting out grievance and I decline to dismiss that grievance at the outset. Turning to the production request raised by the union, I note that the union argued that it was not engaged in a fishing expedition as the employer asserted, as it knew where the fish were located. Its request encompassed production of "all contracts, invoices, correspondence, notes, e-mails, etc." regarding the work performed by the external contractor and regarding the employer's decision to contract out the window washing work. It also requested production of schedules, and postings if any, for the housekeeping department for the penod May 1 to August 31, 2005 Mamtaining the fishing analogy, I note that it perhaps can more appropriately be described as knowing what kind of fish you're seeking. If there are 'arguably relevant' fish to be had, they are subject to capture by a production order And continuing, whether those fish are ultimately fried in butter for the benefit of the arbitrator (used in evidence) is not the question at this stage of the proceedings. Any party is entitled to the productIOn of documents in the possession or control of an opposing party if those documents are arguably relevant to the issues in dIspute between them and whether or not they are ultimately relied upon in evidence. The contract with "Bubbles" is more than arguably relevant - it is at the core of the dispute between the parties. Even where the employer admits to the general details of the contracting out and its decision in that regard, in the absence of an agreed statement of fact filed by the parties, the union is entitled to test that information. I therefore direct that any material in the employer's possession or control which speaks to the nature, volume, or scope of window washing work performed and/or to the employer's decision-making process relating to that work be produced to the union, If there is material about which the employer is uncertain, those specifics may be spoken to The union's request for schedules, and po stings if any, is arguably relevant to the union's .. 3 assertion oflost opportunity and to the scope of the union's remedial request. However the request appears to cover too broad a timeframe in the circumstances. I therefore direct the employer to produce the work schedules that capture the timeframe covering the period of the posted schedule prior to the commencement of the contract up to and including the end of the posted schedule following the completion of the contract. Followmg thts ruling, the partIes met and, following chscussIOns, resolved the gnevances. These matters are therefore concluded. Dated at Toronto, Ontano thts 16th day of May, 2006 M~~~