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HomeMy WebLinkAbout1996-1344UNION97_01_10 I I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2700 TORONTO ONTARIO M5G lZ8 TELEPHONE/TELEPHONE I~ 76) 326- 388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G 7Z8 FACSIMILE /TELECOPfE 1~161 326-1396 GSB # 1344/96 OPSEU # 96U086 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE W Kaplan Vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer ontario Public Services Employees Union FOR THE S Patterson EMPLOYER 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 . 2 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 0 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 I 3 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-Iet 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 4 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 I 5 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 I 6 -- information the union now sought was ordered disclosed A number of cases were cited in support of these and other employer arguments including ~ Transit v. Technical Employees Union 27 L.A C (4th) (Bluman) 160, Mount St. Joseph Hospital v. Hospital Employees' Union 19 L.A.C (3d) 107 (Thompson), Hilton Works (No 1) (1993) 4 PER 12, R.W. Fearman Co. v. UFCW 15 L.A C (4th) 294 (Marcotte) and Giddin~s 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. I 7 In the alternative IMOS took the position that the scope of the subpoena should be narrowed For example, IMaS 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 IMaS did not necessanly 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 justice 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 IMaS 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 I 8 --- 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 tecu m 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 Hyland 1062/89 (Ratushny) and Basso 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 9 accordance with the restrictions mandated in this award, be given effect. Indeed, it would be fair to say that much of the matenals 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 #1, 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 mayor may 1 0 - 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 authontles, 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 ordenng 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 1 1 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 matenals 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 1:1 I~ William Kaplan Vice-Chairperson