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HomeMy WebLinkAbout2006-3024.Union.07-11-05 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2006-3024 UNION# 06-37 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Canadian Union of Public Employees - Local 1750 (Union Grievance) - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Marilyn A. Nairn Ian Thompson National Staff Representative Canadian Union of Public Employees Gmjit Brar Counsel Workplace Safety and Insurance Board October 30,2007. Union Employer Vice-Chair 2 Decision This award deals with the issue of whether or not persons employed in the position of "Category Lead" in the Strategic Procurement and Facilities Management Branch (the "Branch") of the Workers' Safety and Insurance Board ('WSIB" or the "employer") are properly included in or excluded from the bargaining unit. The Canadian Union of Public Employees, Local 1750 ("CUPE 1750" or the "union") represents a bargaining unit of employees of the WSIB described as "all employees, save and except supervisors, persons above the rank of supervisor, and persons excluded by virtue of the provisions of the Crown Employees Collective Bargaining Act" ("CECBA"). A grievance was filed dated June 22, 2006 asserting that this new position had not been included in the bargaining unit. A hearing was held on October 30, 2007. The employer accepted that it bore the onus of establishing that the position was properly excluded from the bargaining unit. The employer relied on section 1.1(3) of CECBA to assert that persons employed in the position of Category Lead had duties and responsibilities that created a conflict of interest with their being members of the bargaining unit. The union disputes that position. The parties have agreed that I have the jurisdiction to hear and determine the matter. There are currently six full-time permanent employees employed in the Category Lead position. Mr. Jeff Clark, the Director of the Branch testified as to the role of the Branch and to the duties and responsibilities of the Category Lead. Mr. Clark reports to the Chief Financial Officer. The Branch has two primary responsibilities; the first relating to the procurement of supplies and services on behalf of the WSIB. The second relates to facility management and is not directly relevant here. The procurement responsibility is subdivided into two main operating components. The first and more historically based operational arm deals with procurement issues on a transactional basis. That is, it procures supplies and materials for use by the WSIB. It is a more reactive component of the operation as it responds to identified needs including the purchase of such things as office supplies, certain office equipment and the like. The second component of the procurement responsibility is referred to as strategic procurement. The position of Category Lead reports to the Manager, Strategic Procurement and Supplier Relationship. In or about 2003 there was an external organizational review of procurement and project management at the WSIB ordered by the Ministry of Labour. That review indicated a need for substantive change in the 3 area of procurement. It identified a need to move from a transactional procurement mode to a strategic procurement approach that better supported the strategic plans of the WSIB. It is premised on a more proactive management of the resources required and utilized by the WSIB. The WSIB contracted with a consulting firm and in 2003, the Branch began to employ more highly skilled procurement professionals in a strategic procurement project. The project ran for four years and has now developed to the point of the creation of the Category Lead position being built into the base business plan for the Branch. The goal was, and is to identify and implement cost saving and/or service enhancement opportunities through a more strategic sourcing program. In material prepared by Mr. Clark for the union, he described strategic sourcing as the process "of identifying opportunities, and evaluating potential sources, negotiating contracts and continually managing supplier relationships to achieve corporate goals". The strategic procurement activities have increased in scope over the course of the four-year period. The Branch began by looking at more traditional administrative "spend" areas and has moved into dealing with more complex service areas. The strategic procurement component now works with line managers in all aspects of the WSIB's operations to source and recommend supplies and services utilized by the WSIB. It is the intention of the WSIB to actively manage the $800 million a year spent on providing and administering health services for injured workers, rather than, as in the past, passively pay for those services. Consequently, there is a dramatic increase in the scope of the involvement of the Branch across the business, and most, if not all of this new work falls within the ambit of the strategic procurement and supplier relationship arm of the Branch. The transactional procurement component continues to exist and, with the exception of the manager of that area, those employees all fall within the bargaining unit. Its work is largely administrative in nature. Mr. Clark described the essential element of the Category Lead as a person who brings business expertise and acumen from a procurement perspective to the WSIB that has not been available to the organization before. A Category Lead is assigned work on a project basis in concert with the priorities of the organization. They are responsible as a team leader typically with members of management from the affected and/or relevant line of business. Their task is to conduct sourcing activity, which includes a significant amount of research both internally and externally with respect to needs, demands, and opportunities. The primary task of the Category Lead is to research, assess, and generate options and/or courses of action and to develop recommendations from that work regarding what course of action brings the best total value to the organization. If adopted, the Category Lead also then has responsibilities to develop a proposal call, a negotiating structure, or other implementation process. 4 For example, historically the WSIB was spending approximately $40 million a year on hearing aid devices and associated practitioners in respect of hearing loss treatment on behalf of injured workers. Working with the noise-induced hearing loss program within the WSIB the Category Lead assessed need, explored the supply and delivery of hearing aid devices, and conducted an investigation of what other approaches might be available. Hearing aid manufacturers in Canada and their marketing systems were researched and approached by a Category Lead. As a result, a memorandum of agreement was ultimately reached with all manufacturers whereby the WSIB now receives discounted pricing on hearing aid devices, which has generated cost savings of approximately $8 million per year. Mr. Clark described that this approach was not typical of a purchase agreement. Rather, it required the organization to step back, reconsider its needs, research potential opportunities in the marketplace, and then choose a strategy as how best to address the organization's needs. That research, assessment, and recommendation role is the function of the Category Lead. The Category Lead works with managers within the organization. On occasion, members of the bargaining unit may be consulted on subject matter expertise but typically do not meet with the Category Lead. Another example provided by Mr. Clark involved general medical supplies. Historically, the WSIB reimbursed injured workers for those products at the time when the injured worker submitted the bill. Reimbursable purchases could come from any pharmacy at any price. A Category Lead conducted research and an assessment of alternative delivery methods and sourcing at both the wholesale and retail levels with the eventual result that a new policy was developed providing directives to injured workers and WSIB staff to utilize a preferred provider network established as a result of this process. This both enhanced service for injured workers and provided better dollar value to the WSIB. A third program example was provided. Previously, the WSIB had utilized seventeen service providers in the context of its labour market re-entry program. Following a review conducted by a Category Lead with the managers of that program, the program was rationalized to utilize only seven service providers. The result, according to Mr. Clark, was cost neutral to the WSIB but was found to provide better health outcomes for injured workers thereby providing better value. A key job requirement set out in the job description for a Category Lead is "knowledge of strategic sourcing and advanced procurement and purchasing concepts attained through a combination of formal education and practical experience to manage the planning, development, implementation and delivery of complex and strategic procurement services". A certificate from the Purchasing Management Association of Canada or equivalent is required. Mr. Clark identified the necessary skill set as including a high level of procurement focused education, which he broadly described as a high level of business acumen, the ability for strategic thinking and assessing alternatives based on good commercial and 5 negotiating experience. Mr. Clark agreed that other members of the bargaining unit are highly skilled and may have educational qualifications equal to or greater than the educational qualifications of the Category Leads. He drew a distinction between a discipline supporting the core services of the organization and a discipline supporting the strategic elements of that business. The Category Lead job description details the job responsibilities: - Develop project/action plans, including resource allocation, time frames and deadlines based on scope of project; develop work plans to allocate work to project team members; set[,] monitor and adjust objectives and time frames and adjusting schedules to accommodate changes and to balance various demands. - Facilitate selection committee's [sic] to determine the needs of the project requirements. - Act independently to lead, manage, coordinate and carry out a wide range of projects and assignments either individually, as a member of a team with project leader, including independent review and a [sic] analysis of special initiatives, understanding and management of sensitive and high profile issues. - Make decisions and take action contributing towards increased or decreased cost, continuous supply of required goods/service, research and maintenance of long-term ethical supplier relations. It is the case that the Category Lead does not make the decision as to any appropriate course of action. However, the Category Lead is expected to research all options and make recommendations with respect to those options based on an assessment of the organization's needs and goals. The Category Lead has what was described as a "deep involvement" in the creation of the business relationship that may become a contract relationship. Most of the contractual terms are determined with the Category Lead's involvement. Formalization of the contract, depending on its value and complexity may also involve WSIB's legal services. The other area of work created by the strategic sourcing approach is the ongoing management of the supply contract and supplier relationship. The Category Lead assists the line of business with negotiations and implementation of the contract, develops appropriate performance measurement tools for the contract, and is currently providing training to program and line managers with respect to the active management ofthe supplier relationship. Mr. Clark acknowledged that to date the WSIB has not actively sought to outsource its services. However, he testified that outsourcing appears frequently as an option available as part of the review conducted by a Category Lead. Although he believed there had been some eight instances that would have involved a sourcing opportunity that would have had a potential impact on the bargaining unit, he was able to specifically identify four. In all cases the offers were unsolicited. In one instance, in the context of sourcing printing and copying equipment, a Category Lead received a proposal to outsource all of the WSIB's mass printing and mailings, a function currently performed in-house by bargaining unit members. In another case, in the course of investigating call distribution technologies, a Category Lead received a proposal to outsource call-handling services, work currently performed by bargaining unit 6 members. In a third case, a Category Lead received an unsolicited offer from a service supplier to perform data entry work as part of the healthcare payment process. Approximately thirty to forty people in the bargaining unit currently perform that work. Finally, in researching and sourcing opportunities for cost containment for injured workers' travel for treatment purposes, a Category Lead received a proposal to provide all booking arrangements on behalf of the organization, a service that is currently performed by approximately nine bargaining unit members. In all examples, senior management reviewed and rejected the option. Mr. Clark testified that like many large and long-standing organizations, the WSIB had developed doing everything itself. He noted that today's economy offers specialized services in many respects, providing organizations with many alternatives for service delivery. The Category Leads are aware of these opportunities from their previous market experience and receive these offers on an ongoing basis as part of supplier responses. It is the responsibility of the Category Lead to investigate these potential opportunities and compare and assess them with existing methods and/or approaches for purposes of making recommendations to management as to an appropriate course of action. There was some evidence that a Category Lead was involved on behalf of the employer and the union in researching the backgrounds of individuals selected by the parties as potential human rights adjudicators under the terms of the collective agreement. However, there was no evidence that the Category Lead had any involvement in the initial creation of the employer's list of suggested names. Similarly, to the extent that a Category Lead was involved in a benefits reassessment, it is clear that that work could have no impact on bargaining unit members as the benefit entitlements were determined by the terms of the collective agreement. * * * The employer relied on section 1.1(3) 15 of CECBA That subsection provides that the Act does not apply to: 15. ...persons who have duties or responsibilities that...constitute a conflict of interest with their being members of a bargaining unit. It was the position of the employer that as the Category Lead has the responsibility for investigating, assessing, and recommending opportunities, some of which may have an impact on the members of the bargaining unit, those duties and responsibilities create a conflict of interest with their being a member of a bargaining unit, such that persons employed in this position are properly excluded by the Act. The employer referred me to Hadwen, Strang, Marvy, and Eady, Ontario Public Service 7 Employment & Labour Law, Irwin Law, 2005 at pages 413-14. It was the position of the union that the role of Category Lead within the organization was no different from the kind of role and relationship of the Privacy Officer, a position included in the bargaining unit. The union argued that any offer to outsource work was unsolicited and had not been adopted by senior management and therefore provided no evidence of a conflict of interest. The union referred me to The Crown in Right of Ontario (Workplace Safety and Insurance Board) v. Canadian Union of Public Employees, Local 1750 (exclusion grievance), [2003] O.G.S.B.A. No. 98 (Nairn); Corporation of the Town of Innisfil, [1994] OLRB Rep. January 76; and British Columbia (Workers' Compensation Board) and Compensation Employees' Union [1996] B.C.C.AAA No. 289 (Kinzie). * * * The parties were agreed that I have the jurisdiction to hear and determine this matter. The application of this exclusionary language was considered in the earlier exclusion grievance brought by CUPE 1750 cited above. In that decision, I dealt with the position of Privacy Officer employed by the WSIB. The decision sets out the appropriate approach to this dispute as well: 24 There is no specific exclusion of Privacy Officer from the bargaining unit description. That leaves the issue of whether or not they are otherwise excluded by law. [CECBA] is the operative legislation and provides that persons may be excluded from the bargaining unit where those persons have duties and responsibilities that "constitute a conflict of interest with their being members of the bargaining unit". Historically that provision mirrored what is now section 1(3) of the Labour Relations Act, 1995 ("LRA") which references conflicts of interest that are described as arising from 1) the exercise of managerial functions or 2) being employed in a confidential capacity in matters relating to labour relations. The provision in CECBA now allows consideration of conflict of interest in a somewhat wider context. However it is not any conflict of interest that will be considered. It is a conflict of interest relating to being a member of the bargaining unit. 29 An employer cannot "sprinkle" duties or tasks that may involve the exercise of managerial function or employment in a confidential capacity in matters relating to labour relations or other conflict of interest with being a member of the bargaining unit in order to justify an exclusion from the bargaining unit.... . 31 And in Fanshawe College of Applied Arts & Technology [1991] OLRB Rep. Sept. 1044, another case under CECBA, it was noted: This "confidential" exclusion enables an employer to better ensure that knowledge of its confidential internal labour relations strategies or communications is restricted to persons whose loyalty is more likely to be undivided. A person's involvement with such information must be more than an occasional or peripheral one to justify a finding that s/he is not an "employee".... Similarly, access to information which may be sensitive or confidential in some business or general sense is not, by itself, sufficient to justify a 8 finding that a person is not an "employee". In that respect, for example, access to personnel information is to be distinguished from access to confidential labour relations information. It is the labour relations content or potential for use [in] collective bargaining.... 32 ....Collective bargaining or labour relations information includes confidential budget material (for example, how much money is available for wage increases and benefits) and information concerning what strategies and priorities the employer will bring to the bargaining table opposite the union. 34 In Corporation of the Town of Innisfil, [1994] OLRB Rep. Jan. 76 the OLRB concluded at paragraph 14: Similarly, access to confidential information relating to labour relations must be distinguished from access to other information that may well be confidential to the employer but irrelevant for collective bargaining pUlposes. The Board has also distinguished between personnel information and information relating to labour relations, particularly where the personnel information is known to the employee or is information that would be required to be disclosed in bargaining. It seems necessary to say that being an employee within the meaning of the Act does not diminish the trust and loyalty of employees in the performance of the work of the employer. 38 The provision in CECBA is now as noted, somewhat broader. It is, however, still modified. It is not any conflict of interest that results in exclusion. It is one that represents a conflict of interest with the person being a member of the bargaining unit. There must be clear evidence of a conflict of interest that would jeopardize the employee's ability to perform their duties for the employer because of conflicting loyalties arising because of their membership in the bargaining unit..... In concluding that the Privacy Officer position did not fall within this exclusion, I commented: 42 .. .Ms. Tkachenko also anticipates that the Privacy Office will assess and make recommendations regarding monitoring of employees through their technology use. Tracking or monitoring of employees through the use of the employer's technology gives rise to a potentially controversial issue and one where the interests of the employer may diverge from those of the union and its members. However, there was no evidence that the Privacy Officers have been involved in making any recommendations. 43 In any event, assessing and making recommendations does not equate to decision-making. In each case Ms. Tkachenko indicated that the role of the Privacy Office was to advise management. There was no evidence that the employer has adopted recommendations of a Privacy Officer without further review and consideration by management. There was no evidence to suggest that the Privacy Officers would have any role in formulating, or be aware of, the employer's collective bargaining strategy based on any assessment they provided. One must also distinguish between what is "possible", what may be required by law, and what is "recommended". The former is a technical research function. The second is an assessment and advice based on specific expertise. It is the scope of the latter that may give rise to the kind of conflict sought to be avoided. Finally, in all these examples, any report or recommendations made would be available to the Union in the event of a dispute either in collective bargaining or in the course of grievance proceedings. 45 ....Any asserted conflict of interest is however, either speculative, does not involve confidential labour relations information, does not relate to the employer's collective bargaining or labour relations interests, or is at best, only peripheral to those interests. It does not represent evidence of duties and responsibilities that would warrant exclusion under either a managerial exclusion or 9 being employed in a confidential capacity in matters relating to labour relations. No other conflict of interest with being a member of a bargaining unit was asserted. Such work cannot therefore found the basis for concluding that constitutes a conflict of interest for the Privacy Officer to be a member of the bargaining unit. (emphasis added) In this case, the employer did not rely on an assertion that the Category Leads were either managerial or employed in a confidential capacity in matters relating to labour relations. It relied on the duties and responsibilities of the Category Lead in investigating, assessing, and recommending strategic options to the management of the organization. The Category Leads are not employed in a confidential capacity in matters relating to labour relations in the usual sense. That exclusion generally captures a position in which the person does not exercise managerial functions but comes into contact in a regular way with information that is confidential to the employer in respect of its labour relations and collective bargaining interests. A typical example is a position such as an administrative assistant to the Human Resources Director of an organization wherein that person has access to, and is responsible for assisting in the preparation of employer proposals for collective bargaining, costing data and the like; that is, information concerning the strategies and priorities of the employer in collective bargaining. The conflict of interest exclusion is broader although, as noted, it still involves a conflict of interest with being a member of a bargaining unit. Is there clear evidence of a conflict of interest that would jeopardize the Category Lead's ability to perform their duties for the employer because of conflicting loyalties arising from their membership in the bargaining unit? I am persuaded that such a conflict of interest exists with respect to the position of Category Lead in this Branch. Let me first note that acting "strategically" or as a "change agent", or making "assessments" or being involved in "policy development" does not preclude a finding that the individual exercising those attributes or involved in those tasks is an employee covered by CECBA One must look to the substantive work of the individual in order to determine whether a conflict of interest as described in that Act exists. The position of Category Lead can be distinguished from that of the Privacy Officer in this regard. In that case, the employer mostly asserted that the Privacy Officer had access to confidential information. It was determined however that the information was not confidential information relating to labour relations. It was therefore not caught by that exclusion. The only element of that position that hinted at any other type of conflict of interest was the suggestion that the Privacy Officer might be called upon to make recommendations regarding monitoring of employees through their technology use. First, there was no evidence of any recommendations having been made and the suggestion was entirely 10 hypothetical. Secondly, it was anticipated as only one discrete and finite piece of the Privacy Officer's work. However, I noted in the decision that assessing and making recommendations does not equate to decision-making. The union relies on that statement in this case. However, one need be careful not to take that statement out of context from the comments following in paragraph 43 of that decision or apply it to the Category Lead position without consideration of the relevant duties and responsibilities. It was not the role of the Privacy Officer to make recommendations to the employer that would have put that person in a conflict of interest with being a member of the bargaining unit. To the extent that a Privacy Officer might have made recommendations regarding monitoring of technology use, those recommendations would be more of an advisory "what is possible" technical research function rather than an assessment of options. In addition, the union would be in a position to challenge the reasonableness of any such rule(s) formulated by the employer and have access to the Privacy Officer and their work in that regard. Not only was this example peripheral to the Privacy Officer's overall duties and responsibilities, no conflict of interest is created in the circumstances. Such is not the case here. The primary function of a Category Lead, having regard to their specific procurement expertise, is to investigate, assess and recommend options to management with respect to supply and service delivery. A key function of the Category Lead is to analyze and evaluate opportunities regardless of how those come to their attention. In the course of their work they are to look for and are made aware of areas within the organization under consideration by senior management for alternative service delivery options that, depending in part on the work of the Category Lead, could have an impact on members of the bargaining unit whether arising from the reorganization of work, the elimination of work, or an alternative delivery mechanism for the work. The Category Lead is involved in strategic planning options before the union becomes involved or is even aware of such options and before any decisions are made. The evidence shows that outsourcing opportunities have been received and assessed by Category Leads. The making of these offers may be unpredictable in that they may arrive unsolicited. Nevertheless, they form part of the assessment expected from the Category Lead. This is not peripheral work. The Category Lead must be in a position to consider all potential options. It is also clear from the collective agreement that outsourcing exists as a possible management option. Unlike the work of the Privacy Officer, the union has no obvious right of access to this information. Article 6 of the collective agreement is recognized by the union as not prohibiting contracting out but rather, allowing only for a process to deal with the consequences of any such decision. Article 6 comes into play only after management makes a decision, at which time it is able to discuss with the union its "intentions and the expected effects" 11 during "the planning of Organizational/Technological changes". That is secondary to the pre-decision involvement of the Category Leads. As noted earlier, this is not to say that members of the bargaining unit participating in strategic planning activities of the organization are necessarily placed in a conflict of interest as a result. It is the nature of the procurement work that the Category Leads perform, and the particular work of investigating, assessing, and recommending options that may include potential outsourcing of services or alternative service delivery of work otherwise performed by bargaining unit members that gives rise to a conflict of interest here. It may be speculative to say that this information forms part of the employer's collective bargaining interests as this work occurs prior to any decision being taken based on the information. Also, an option that negatively impacts on the bargaining unit may be rejected by management. Those circumstances do not alleviate the existence of a conflict of interest. The fact that Category Leads are charged as a regular part of their responsibilities to investigate and recommend options, regardless of whether or not they are solicited, which might result in the outsourcing or alteration of work to the detriment of bargaining unit members, puts them in a conflict of interest position were they to be included in the bargaining unit. In order to perform their job appropriately, the Category Lead must be free, and be seen to be free to assess all of the options openly and fully, and without regard to any potential impact that one option might create for their coworkers. They are otherwise put in the position of having divided loyalties. The exclusion is designed to protect such individuals from being put in such a position. The exclusion recognizes that they ought not to have to bear that responsibility. Indirectly, it reinforces the confidence that management is able to place on the work ofthe Category Lead in making assessments and recommendations. This is not to suggest that persons are any less trustworthy or perform their work less responsibly when members of a bargaining unit. That suggestion has been rejected repeatedly in the case law and was expressly rejected by the employer in this case. It is simply the case that employees ought not to be put in the position of facing divided loyalties. Having regard to all of the above, I hereby find that the position of Category Lead in the Strategic Procurement and Facilities Management Branch of the WSIB is properly excluded from the bargaining unit. This grievance is hereby dismissed. 12 Dated at Toronto, Ontario this 5th day of November, 2007.