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HomeMy WebLinkAbout1998-0320.Union.99-10-12 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (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 Ontano PublIc ServIce Employees Uillon (UillOll Gnevance) Grievor - and - The Crown III RIght ofOntano (Mimstry of Transportauon) Employer BEFORE Loretta Mikus Vice ChaIr FOR THE RIchard BlaIr GRIEVOR Counsel, Ryder Wnght, BlaIr & Doyle Bamsters & SOlICItorS FOR THE Sunil Kapur EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING September 28 1999 These gnevances anse from a MiillStry of TransportatIOn (MTO) decIsIon to out source some of ItS work at the New LIskeard locatIOn. The background to these gnevances IS best described by ArbItrator DIssanayake In a prevIOus arbItranon between the partIes (August 13 1998) as follows The MiillStry of TransportatIOn Issued 6 area mamtenance contracts (AMC-s) With a VIew to pnvatlZlng certam work hItherto performed by OPS employees, work such as road patrol, road surface and shoulder mamtenance, dramage and vegetatIOn management. A Request for Proposals (RFP) was Issued May 27 1998 Accordmg to the employer-s understanding of ItS oblIganons as gleaned from preVIOUS -reasonable efforts- decIsIons of the Gnevance Settlement Board, the employer mcluded three parts m the Human Resources Factor (HRP) of the RFP namely Mandatory ReqUIrements, Rated ReqUIrements and the Human Resources Incennve 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 pnvanzanon; such Job offers had to mclude 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 aJob offer could not mclude any probanonary penod. Pursuant to thIs RFP the Mimstry selected a company called Integrated Mamtenance and OperatIOns ServIces Incorporated (IMOS) as the successful proponent. IMOS consIsted of 6 shareholder compames, whIch had a combIned workforce of between 3500 to 4000 employees 41 Mimstry employees were Included In the RFP as affected employees. However subsequently 2 were removed. The remammg 39 employees were to be transferred to a company known as Miller Mamtenance, one of SIX companIes m the IMOS Group The eXIsnng Miller workforce was not uilloillzed. Followmg the announcement of the successful proponent, the umon filed a gnevance dated May 31 1998 allegmg that the MiillStry had vIOlated AppendIx 9 of the collectIve agreement wIth regard to the 6 Area MaIntenance Contracts - Minutes of Settlement and Release- were executed on June 26 1998 With regards to thIs gnevance wmch read as follows THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (-OPSEU-) 2 AND THE CROWN IN THE RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTRY OF TRANSPORTATION (-MINISTRY-) MINUTES OF SETTLEMENT AND RELEASE The PartIes agree to resolve all matters ansmg out of the gnevances referred to by GSB # 0320/98 and OPSEU #98U073 on a wIthout prejUdICe and precedence basIs as follows. 1 The MiillStry will be permItted to close ItS call for tender and/or RFP-s, evaluate, announce the preferred bIdder and begm ImplementaTIon With regard to the followmg Area MaIntenance Contracts. These AMC -s will close on the dates specIfied below' (a) AMC 98-10 July 8th, 1998 (b) AMC 98-02 July 8th, 1998 ( c ) AMC 98-03 July 8th, 1998 ( d) AMC 98-04 July 8th, 1998 (g) AMC 98-05 July 22, 1998 (f ) AMC 98-06 July 22, 1998 2 OPSEU agrees that the mandatory cntena and the HRlF evaluaTIon cntena mcluded m the AMC -s are sufficIent to meet the MiillStry-S reasonableness efforts up to that part of the process and releases the MiillStry from all lIabilIty m relatIOns thereto 3 The partIes agree that thIs MiillStry remams oblIgated to negoTIate WIth regard to the HRlP as sTIpulated m the RFP Therefore, the partIes agree to the folloWing process m relaTIon thereto With regard to AMC -s ( a ) to ( d ), OPSEU Will be provIded wIth a 5 day penod between August 10 and 31 1998 wIthm wmch to reVIew the efforts that the MiillStry has undertaken In relaTIons to the HRlP If OPSEU has any concerns wIth regard to the MiillStry-S efforts m relatIOns thereto, OPSEU may refer the matter to medIatIOn/arbItraTIOn WithIn that 5 day penod and the matter must be dealt With and completed WithIn thIs TIme frame. With regard to AMC -s ( e ) and ( f), OPSEU will be 3 provIded wIth a 3 day penod between August 24 and September 11 1998 WIthm wmch to reVIew the efforts that the MiillStry has undertaken m relaTIon the HRlF If OPSEU has any concerns wIth regard to the MiillStryOS efforts m relaTIon thereto, OPSEU may refer the matter to medIaTIon/arbItraTIOn WItmn that 5 day TIme penod 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 K ydd HJ 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 m tms paragraph and 1 above 6 The employees lIsted m paragraph 4 and other sImilarly sItuated employees, If any as referred to m paragraph 5 shall forthwIth elect to reTIre or pensIOn bndge, pursuant to paragraph 2 or 3 of AppendIx 9 whIch ever artIcle IS applIcable to that employee and Will exerCIse no other nghts under ArtIcle 20 except as provIded In paragraph 2 or 3 of AppendIx 9 7 OPSEU releases the MiillStry from all lIabihty 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 Mimstry entered mto negotIaTIOnS and came to an agreement WIth IMOS as to terms and conditIOns of employment for the 39 MiillStry employees who were beIng made Job offers. On August 10 1998 the Uillon was provIded a copy of the agreed to terms and COndITIOnS whIch were executed on August 9 1998 The umon dId have concerns about the .reasonable efforts. on the part of the MiillStry and those concerns were referred to the GSB pursuant to Para. 3 of the Minutes. I was seIzed With the Uillon-s concerns as they related to 4 of the 6 Area MaIntenance Contracts After consIdenng the hIstory of the negoTIaTIons leadmg to the contract wIth IMOS, ArbItrator DIssanayake stated. The Board IS satIsfied that the MiillStry made reasonable efforts dunng the HRlF negoTIaTIons stage consIdenng the partIcular CIrcumstances It faced. Usmg the funds aVaIlable, the MiillStry was able to enhance a number of terms and COndITIOns. In some others It was not as successful. That was not mdICaTIVe of a failure to make reasonable efforts. Before me are several gnevances ansmg from that fact sItuaTIOn, most of whIch gIve nse to prehmmary Issues mcluding the adlll1ssibihty of eVIdence of negoTIaTIng hIstory whether the MiillStry IS estopped from obJectmg to the mdivIdual gnevances, whether the gnevors can challenge the placement of theIr names and pOSITIOnS on the RFP and whether the offer made to the employees m any event comphed With the terms of the agreement requmng aJob offer at least equal to 85 % of the employees. preVIOUS wages Finally there IS an Issue about whether I am bound by an oral ruhng by ArbItrator DIssanayake m the heanng for the above noted award. Dealmg first With the Issue of estoppel and the admIssibihty of negoTIaTIng hIstory the Uillon took the pOSITIOn that, dunng the Stage 2 gnevance meeTIng of the gnevance before ArbItrator DIssanayake, the Umon clearly told the employer that It could not agree to any settlement that precluded mdIvIdual members from gnevmg alleged vIOlaTIons of the collectIve agreement. The gnevance was deilled and at a later stage m the gllevance process, the Minutes of Settlement and Release reproduced above were executed. The Umon asserts that the employer was put on nOTIce that the Uillon would not sIgn away mdIvIdual llghts and that the Minutes of Settlement and Release were sIgned on that basIs. The employer IS now estopped from assertIng ItS llghts In the cIrcumstances. The Mimstry argued that no estoppel eXIsts m tills case Even If the Uillon did refuse to settle the ollgInal gnevance at stage 2 Without an assurance that mdIvIdual gnevances would survIve, once the gllevance was demed and processed to the next stage, any offers of settlement made or pOSITIOnS taken dUllng that process were confined to that stage. When the partIes resumed negotIaTIOnS, neIther was bound by any earher statements. The Uillon did not renew ItS pOSITIOn dUllng the negotIaTIOnS leading to the Minutes of Settlement and Release The Minutes were not sub] ect to any prevIOUS posItIOns or statements by eIther party If an employer was estopped from assertIng ItS llghtS because of a comment made at an earher meeTIng that was never repeated or renewed, It would be loath to make any offers m the future That, It was argued, makes very bad labour relatIOns sense and should not be adopted by tills Board. I agree With the pOSITIOn of the MiillStry The negoTIaTIons dUllng the stage 2 gnevance meeTIng would, m 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 gnevance meetmg 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 hTIgaTIon. The partIes have agreed for that reason that those discussIOns are pnvlleged and cannot be rehed on at arbItraTIOn. In thIS case the discussIOns are bemg relIed upon to found an estoppel and therefore must be disclosed. Nevertheless, the pnncIples concerrung the pnvileged nature of gnevance procedure discussIOns cannot be Ignored and any decIsIon to admIt those dIscussIons must be made With those pnncIples m mInd. The Uillon alleges that ItS pOSITIOn at stage two was clearly commumcated to the Employer and thus creates an estoppel. However there IS no eVIdence before me that the Umon reaffirmed that posItIOn at any TIme dunng the negotIaTIOnS for the Minutes of Settlement and Release. There IS no eVIdence before me that those mmutes were subject to any condiTIons. The pOSITIOn of the Umon dunng the stage 2 meetmg were rejected by the Employer The Umon acknowledged that rejeCTIon by advancmg the gnevance 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 Uillon did not renew ItS pOSITIOn and the negOTIaTIons were concluded on that basIs WIthout qualIficaTIons or COndITIOns. The Uillon also took the pOSITIOn that the language of the Minutes of Settlement and Release were ambIguous and that the Board should hear extnnsIC eVIdence of the bargammg hIstory to determme the mtenTIon of the partIes. The MiillStry took the pOSITIOn that extnnsIc eVIdence IS admIssible only where the document at Issue contams an ambIguIty latent or patent, that reqUIres addiTIonal eVIdence to gIve meaillng to the words used. In tills case, It was argued, the words of the Minutes of Settlement and Release are clear The agreement resolves -all Issues ansmg out of the gnevances referred to by GSB # 0320/98" It spec1flcally states that the employer has met Its -reasonable efforts- obhganons under Appendix 9 and -releases the Mimstry from all habihty m relanon thereto- (My emphasIs) If the Umon connnued to have concerns about the reasonable efforts, It had 5 days to refer the matter to medi an on/arbItratIOn. It did not. The fourth paragraph of the Minutes Idennfies by name 6 mdIvIduals who were to be surplussed. Those 6 were the only ones removed from the RFP The fifth paragraph specIfically releases the MiillStry from all habihty wIth regard to paragraph 5 of Appendix 9 The Uillon contended that the ambIguIty hes m the fact that there IS no mennon of mdivIdual gnevances related to the Implementanon of the Job offers that mvolve mdivIdual fact sItuanons that could not be the subject of a Uillon gnevance. That may be, but the partIes did foresee the potennal 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 m describmg theIr mtennons. They did not say that the Minutes settled the gnevances but rather that the Minutes settled all matters anSIng out of the gnevances. They did not merely SIgn Minutes of Settlement but rather Minutes of Settlement and Release (my emphasIs) Clearly the partIes mtended thIs document to be a complete and final resolutIOn of all matters related to the Uillonos gnevance #0320/98 That, m my VIew Included mdivIdual gnevances of matters ansmg from gnevance #0320/98 related to the AMC and RFPos referred to above That does not, however preclude a Board at the GSB from heanng dispute regarding the ImplementaTIon of the Minutes and any allegaTIons of bad faIth m Its apphcaTIon. It IS clear from the very TItle of the Minutes of Settlement and Release that the partIes mtended thIs document to completely resolve all matters related to these AMC - s so that the MiillStry could get on WIth ItS outsourcmg. They used words Intended to convey that message. They agreed to resolve -all matters ansmg out of gnevances # 0320/98" and to release the Mimstry from -all habihty m relaTIon thereto- (that IS to reasonable efforts), and finally that the Umon released the MiillStry from -all habihty 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 ruhng made by ArbItrator DIssanayake m the August 13 1998 decIsIon between these partIes. Dunng the heanng, Mr Leeb for the UillOll, advanced the argument that certaIn IndivIduals were placed on the RFP but theIr work dId not leave the Mimstry Mr DIssanayake ruled orally that the Uillon could not go behmd the RFP because the placement of an employee on It was a management nght and not subject to a challenge by the Uillon. The MiillStry took the pOSITIOn that thIs Board IS bound by that ruhng m the same way a panel of the Gnevance Settlement Board IS bound by preVIOUS deCISIons on sImilar matters. The Mimstry took the pOSITIOn that the Issue IS res judicata. The Umon asserted that tills Board can overturn a preVIOUS deCISIon of the GSB If the ongInal decIsIon IS marufestly 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 m an arbItrary dIscnmmatory or bad faIth manner It was argued that, If ArbItrator DIssanayake meant that no management nght can ever be challenged, he was clearly wrong and thIS Board IS not bound by ills rulmg. If the MiillStry IS suggeSTIng that Boards of ArbItraTIOn should be bound by oral ruhngs mother proceedmgs, I dIsagree When an arbItrator IS presented wIth case law m support of a pOSITIOn, the fact sItuaTIOn IS usually set out m detail. The reasons for the ruhng are set out so that the underpInillngs for the decIsIon are clear In decIding whether to follow that ruhng, an arbItrator can compare those CIrcumstances to the fact sItuaTIOn before illm/her to determme whether It IS apphcable. Dunng heanngs, numerous eVIdenTIary decIsIons are made that are never reduced to wntmg and the reasons are never reproduced m full It would be sImply wrong to bmd one Board to the oral ruhngs of another m those sItuaTIOns. It would reqUIre an arbItrator to bhndly accept one partyos verSIOn of the ruhngs of another arbItrator WIthOUt all of the mformaTIon necessary to properly consIder the matter before illm/her That would be an abrogaTIon of an arbItrator.s responsibihty to hear and determIne the Issues before illm/her and open to challenge at a illgher level The oral ruhng by ArbItrator DIssanayake IS not bmding on me. The Issue then of the nght for mdivIdual 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 Mimstry and IMOS reqUIred IMOS to make Job offers to all desIgnated employees consIstmg of. at least 85% of the respective employees. salary as set out in Schedule n- Schedule D contains a hst of Job classIfIcatIOns, semonty dates, weekly salanes and locatIOns. Based on that hst, 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 $73360 per week. According to ills calculatIOns, $18 33 an hour nmes 40 hours per week equalled $733.20 per week or 84 992% of ills current salary The letter stated that hIS hourly rate equalled $733.26 per week or 84 999% of ills weekly salary of $862 66 Mr John Quehe receIved a sImilar letter settmg 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 quotmg a salary of$16.38 per hour or $65552 per week. AccordIng to hIS calculanons the hourly rate quoted equalled 84 95% of ills salary The weekly rate equalled 85%. On September 3 1998 each of them receIved sImIlar letters revokmg the September 1 st letter and replacmg It, In the case ofMr Quehe and Mr Beagan, WIth a new Job offer of $18.34 per hour or $733 60 per week. Mr Etiller-s new salary offer was $16 39 per hour or $65560 per week. On September 9 1998 the gnevors accepted the Job offers -under duress and Without preJudice- They also filed gnevances allegmg that theIr nghts had been vIolated under Appendix 9 of the collectIve agreement. They took the posItIOn that, smce the IMOS Job offer does not meet the mandatory reqUIrements of the RFP they are entItled to be surplus sed and to claim theIr full severance nghts under ArtIcle 20 The Mimstry 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 gnevoros claims meanmgless. In the alternaTIve, IfIMOS was m breach of ItS agreement to offer employees 85% of theIr salanes, the only redress for the gnevors IS to ask tills Board to order IMOS to comply wIth the terms of ItS agreement With the MiillStry There are no addItIOnal nghts because the Issue IS a breach of the AMC between the MiillStry and IMOS, not the collecTIve agreement. The Umon argued that, once the Job offers fell below at least 85 % of their current salary certam nghts were trIggered willch are not mSIgruficant. The nght to be surplused under ArtIcle 20 IS a senous nght that should not be dIsmIssed as meanmgless. The partIes have establIshed a threshold. A failure to meet that threshold, by a lIttle or a lot, opens the door for these gnevors to claim nghts they would not otherwIse be enTItled to These offers clearly fell below that threshold and the gnevors would like an order from tills Board valIdaTIng theIr ArtIcle 20 nghts. None of the Issues ansmg out of the reasonable efforts obhgaTIons under the collectIve agreement are llTelevant or mSIgruficant. Some employees will lose theIr Jobs. Other employees will be offered Jobs at 85 % of theIr prevIOus rate The reqUIrement to accept a J ob 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 nghts. From the govemmentos perspectIve, contmued OppOSITIOn to these RFP.s and AMC os has resulted m costly delays and extended negOTIaTIons wIth the proponents. It has been difficult for everyone. Not surpnsmgly m thIs case, when the gnevors saw an OppOrtuillty to claIm ArtIcle 20 nghts 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 wmch the offers fell below the threshold was of no concern to them. Only the fact that they did was Important. However m these cIrcumstances, theIr gnevances must be dIsmIssed. The Job offers were made and rescmded before the gnevors had an opportumty to reject or accept them. If they had rejected the Job offers and asserted theIr ArtIcle 20 nghts before the offer from IMOS was revoked, different consIderaTIon mIght have apphed. The fact IS, the first Job offer was revoked before It could be accepted and was replaced by a Job offer that was WItmn the mandatory reqUIrement of 85% of theIr salary and therefore was m complIance WIth the AMC The gnevors cannot rely on a Job offer that IS no longer on the table DECISION The Uillonos motIOn to admIt eVIdence of the negoTIaTIng mstory related to the Minutes of Settlement and Release IS dIsmIssed. The oral ruhng of ArbItrator DIssanayake WIth respect to thIS Issue of Improper placement on the RFP IS not bmdmg on tills Board. The gnevances ofMr Breagan, Mr Quehe and Mr EthIer are dimIssed msofar as they relate to the Issue of the mandatory offer of 85% of salary Dated at Toronto, thIS 1ih day of October 1999 Loretta Mikus, Vice Chair