HomeMy WebLinkAbout1997-1196UNION97_10_29
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARJO
111111 GRIEVANCE COMMISSION DE
,
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE!7iLiPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/M/LE/TELECOP/E (416) 326-139C
GSB # 1196/97
OPSEU # 97U123-4
IN THE MATTER OF AN ARBITRATION
Onder
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grievor
- and -
the Crown in Right of ontario
(Management Board secretariat)
Employer
BEFORE N Dissanayake Vice-Chair
FOR THE G Leeb
ONION Grievance Officer
ontario Public Service Employees Union
FOR THE D Holmes
EMPLOYER Counsel
Management Board Secretariat
HEARING October 20, 1997
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DECISION
This decision deals with an application for interim relief under
section 4'8(12) of the Labour Relations Act The union has filed two union
grievances relating to a Request for Proposals (\\RFP") issued in September
1997 for the outsourcing of work currently performed gy bargaining unit
employers at the Central Collection Services Branch of the Management Board
Secretariat (\\CCS") The RFP has a closing date of October 30, 1997 In
the first grievance the union alleges that the employer in the RFP fails
to make reasonable efforts to obtain for the employees job offers from the
prospective new employers with terms and conditions as close as possible
to the existing terms and conditions It is alleged that thereby the
employer has failed to comply with paragraph l(a) of Appendix 9 to the
collective agreement In the second grievance, the union claims that the
employer has failed to comply with paragraph 5 of Appendix 9 requiring that
employees be given the opportunity to submit a tender or bid on the same
basis as others
The interim relief sought is an order enjoining the employer from
closing the RFP until the merits of these two grievances are heard, or in
the alternative at least until the Divisional Court issues its decision in
an application for judicial review in the Board's decision dated June 9,
1997 in Re OPSEU and Ministry of Transportation, 1344/96 (Kaplan)
The employer's primary position is that this application for interim
relief is premature because the RFP has not yet closed, and contracts have
not been awarded to any bidder as of this date On that basis the employer
,
'- submitted that the Board lacked jurisdiction to grant the requested relief
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In the alternative, the employer submits that the union has failed
to establish either of the two conditions that must exist for granting of
interim relief That is, the union has failed to establish that it has an
"arguable caseH and that the "balance of harmH resulting from not granting
the relief impacts on it more
The Board rejects the employer's position that the application 1.S
premature The employer's position is that an actual violation of the
collective agreement could not possibly occur until the tenders are closed
and contracts awarded By the very nature of the relief sought, i e
interim relief, such applications are typically made pending the
determination of the merits of a grievance If the merits have already
been determined, obviously, there is no need for "interimH relief What
must exist is not a proven violation but an alleged violation In the two
grievances, the union has made allegations that the RFP is in violation of
the collective agreement In the RFP the employer has set out the rules
that will govern the award of the tenders What the union is alleging is
that if these rules are followed through, the collective agreement will be
violated to the detriment of its members Arbitrators have held, and the
courts have upheld, that employees may grieve the mere promulgation of a
policy, without waiting for the policy to be applied to the detriment of
any particular employee Such a grievance is not premature See, Re
Municipality of Metropolitan Toronto and CUP E (1987) 62 0 R (2d) 636
(Div Ct ) revd 69 D L R ( 4th) 268 (Ont Ct of App) , leave to appeal to
see refused 120 N R 192n (S C C ) Similarly, particularly considering
that this is an application for interim relief, it does not make sense to
hold that an application is premature until the impugned action is carried
out and the harm is done The purpose of interim relief is to prevent the
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potential for the harm being done, where the union can establish certain
conditions
Having concluded that the Board has jurisdiction to entertain this
application, I turn to the two conditions for interim relief The union
points out that the Kaplan award supra found the employer's method of doing
RFP's was defective and failed to meet the "reasonable efforts test" in
Appendix 9 While admitting that since that award the employer has made
certain changes to its procedure, it is the union's position that the
employer still has not "done enough" to satisfy the reasonable efforts
test Particularly, the union submits that the employer has failed to
comply with an order made by the Board (the emphasized portion of the
excerpt below) at page 34 of the award, designed to bring the employer's
procedure into compliance with the collective agreement
wi th respect to this case, the union has established to my
satisfaction based on the evidence before me, because of the
flaws in the HRF, and the employer's failure to make full use
of the enhanced severance savings in securing for its employees
private sector jobs, that the employer is in breach of its
reasonable efforts obligations The question of remedy now
arises Obviously, the union is entitled to and receives a
declaration to that effect The employer is directed to refine
the HRF so as to properly take into account differences between
bids in a way that appropriately recognizes important
distinctions and to modify its practices so as to ensure that
it can make full use of savings on enhanced severance costs in
finding private sector jobs for public servants, and to do so
both as part of and after a bidding process
(Emphasis added)
with regard to the second grievance, the union submits that while the
employer has technically met the literal words of the collective agreement
by permitting employees to "bid on the same terms as others", by imposing
I"
'- certain mandatory requirements which employees could not possibly meet, the
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employer has in effect ensured that no employee would ever be a successful
bidder The union cited two examples of these mandatory requirements The
first is a requirement to provide "references from three major clients for
which the same or similar types of services and complexity have been
performed over the last 12 months" The union points out that no employee
could ever meet this mandatory criterion, because as civil servants they
would not have serviced any clients, other than their own employer
Secondly, the union points out that while someone who had previously
carried on a business may be able to provide a "irrevocable and
unconditional letter of credit issued by a Canadian Chartered Bank or Trust
Company" for $ 200,000 00, an employee in the OPS will not be able to do
so In effect, the union's argument is that in light of these mandatory
conditions which are obviously impossible to meet, the equal right to bid
accorded to employees is merely illusory The union relied upon a
principle analogous to "systemic discrimination" applied in human rights
cases, to submit that in these circumstances discrimination does occur by
treating OPS employees and outside bidders equally
The employer's position is that there is no arguable case that in
this RFP the employer has failed to meet the "reasonable efforts" test
The employer led evidence from the primary drafter of the RFP, Ms Leslie
Nanos, to the effect that careful consideration was given to ensure that
the test is satisfied, (1) By allotting 9% of the points to the Human
Resources Factor in the RFP (2) By making the Human Resources Factor the
tie-breaker in the event of a tie between two bids and (3) By the employer
undertaking to pay the $ 175 00 registration fee for any OPS employee hired
by a successful bidder
~'
,
.
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On the second grievance, the employer's position simply was that the
collective agreement only required it to treat its own employees and others
equall y Since the requirements imposed on both groups were identical, it
was contended that it had complied with the collective agreement
In a case such as this, the obligation of the union is not to prove
its case on a balance of probabilities as would be the case in a hearing
into the merits of the grievances It only needs to show that it has "an
arguable case" That standard must necessarily be lower than the test of
proof on a balance of probabilities
The employer counsel argued that the Kaplan award did not make any
direction or order in the emphasized portion reproduced above In her
view, that was mere obiter, after a declaration was made that the
collective agreement was breached She further submitted that since that
award dealt with a different ministry, and a different type of RFP, it had
no relevance to the RFP in this case
In my view, where the Board states "The employer is directed to" do
something, it is simply not possible to consider that to be mere obiter or
that the matter is left to the discretion of the employer Furthermore,
the evidence clearly indicates that the employer did not understand the
Board's order to be anything other than an order Exhibit #3, a memorandum
dated June 20, 1997 from the Secretary of the MBS to Deputy Ministers and
Chief Administrative Officers, explicitly acknowledges that it understood
the Board's statement to be a "direct(ion) to the employer to apply the
, following principles in the application of its reasonable efforts
~
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obligations" The principles listed includes the action the Board ordered
to be done in the excerpt of the award
Moreover, even Ms Nanos did not take the position that she did not
consider the Board's award to be an order She testified on the contrary,
that the Board's order was contrary to all the government rules applied in
the past and that that was why the matter was under judicial review She
testified that in drafting this RFP she did not depart from the rules
applied in the past because she was not directed by her superiors to do so
In essence, her position was not that the Board did not make an order, but
that the order made was clearly wrong and untenable Because of that, she
attempted to meet the reasonable efforts obligation by making other changes
without complying with the Board's order
Similarly, despite counsel's arguments, the memorandum from the
secretary of MBS and the testimony of Ms Nanos does not indicate that the
employer considered the Board's direction to be irrelevant for RFP's other
than the particular one under review in that case The memorandum, for
example, is directed to all Deputy Ministers and CAOs, and not only to the
Ministry of Transportation The principles extracted from the award are
listed as general principles to be followed in the application of the
reasonable efforts obligation
For all of the foregoing reasons I conclude that the union has made
out at least an arguable case with regard to its first grievance that by
not incorporating a direction of the Board made in the Kaplan award into
\ the present RFP, the employer's RFP process may continue to be in violation
,-
of the collective agreement
.
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I reach the same conclusion with regard to the second grievance
When the parties agreed to paragraph 5 requiring that employees be given
the opportunity to submit a tender "on the same basis as others", they must
have intended thereby to confer some benefit on the employees The union's
argument that by imposing mandatory conditions which are obviously
impossible for OPS employees to meet, the collective agreement has been
rendered illusory, is not without merit It certainly falls within the
realm of an "arguable case"
Next, I turn to the issue of "balance of harm" The employer's
witness, Ms Nanos testified that if the outsourcing is delayed as a result
of interim relief ordered by the Board, the employer stands to suffer
significant financial loss, because "the older a debt gets, the less
collectible it becomes" The employer argued that while it led evidence
about the potential harm it can suffer if the Board grants the relief
requested, the union led no evidence about any detriment that may result
to it if the relief is denied All the Board heard was union counsel's
submissions that if the employer is allowed to close the RFP and proceed
with the outsourcing, the employees would irrevocably lose their rights
under the collective agreement While it is true that no witness as such
testified about the potential harm to the union, common sense dictates that
the testimony of Ms Nanos cannot be accorded any greater weight Ms
Nanos was merely giving her opinion as to what might result That opinion
was genuinely held and was, in my view, a reasonable one Likewise, the
prediction of union counsel, although not tendered as evidence under oath,
in my view, was a reasonable and logical prediction of what may occur In
\ these types of proceedings, no party will be able to "prove" the harm
-
because typically requests for interim relief are made before the harm is
,
9
done In each case, in considering the condition of "balance of harm", the
Board must attempt as best as it can, to predict what harm may be
reasonably expected in the particular circumstances
In the present case, the Board was informed that the application for
judicial review of the Kaplan award is scheduled to be heard on November
7, 1997 If the outsourcing in question is delayed by several months, the
worst consequence to the employer is one of monetary loss The evidence
is that even as it is the employer is not in a position to collect the bulk
of its portfolio Ms Nanos testified that of some $ 320 million owed to
the employer, only about $ 32 million is presently collectible In the
Board's view, the potential for a further impairment of the collectability
of the employer's debts resulting from a delay of several months in the
implementation of its outsourcing schedule is not as significant as the
potential for irreparable loss of negotiated collective bargaining rights
of the employees in the event the outsourcing is found after the fact, to
be in contravention of the collective agreement The Board therefore
concludes that the "balance of harm" criterion is in favour of the union
In light of all of the foregoing, the Board directs that the employer
shall not close its RFP until the merits of the two grievances are heard
and determined by the Board However, if the court issues its decision in
the application for judicial review of the Kaplan award prior to that time,
the employer may, if it deems appropriate, seek to vary the interim relief
granted herein In order to minimize the delay resulting from this order,
both parties are directed to act reasonably to enable the merits of these
I grievances to be heard as expeditiously as possible
\
""
,
..
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At the joint request of the parties I record that I am not seized of
any further hearings that may ensue with re9ard to any request to vary the
interim relief or the merits of the two grievances
Dated this 29th day of October, 1997 at Hamilton, Ontario
~~a:
Arbitrator