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Home My WebLink About1998-0180.Union.98-06-03ONmRD CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOY& DE LA CWRONNE DE L’OKTARK) COMMISSION REGLEMENT DES GRIEFS 180 DLJNDAS S7REET WE.57; SUIJEBOO, TORONTO ON M5G 7Z8 160, RUE DUNDAS OUES7; BUREAU 600, TORONTO (Oi’J M5G II8 DE TELEPHONEJTitiPHONE : (416) 326- 1388 FACSIMILElliLkOPIE : (416) 326- 1396 GSB #IO 180/98 OPSEU #98UO61 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievors - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Susan L. Stewart Vice-Chair FOR THE UNION G. Leeb Grievance Offker Ontario Public Service Employees Union FOR THE EMPLOYER L. Marvy Counsel, Legal Services Branch Management Board Secretariat HEARTNG June 1, 1998 I)ECISION This is an application for interim relief in connection with a grievance dated May 4, 1998, in which the Union claims that the Employer has violated Appendix 9 of the Collective Agreement. The Union has requested an order that the Employer be prevented from proceeding with the closing of the tender process, scheduled for 1:30 p.m. on Wednesday June 3, 1998, and that such an order stand until this dispute relating to reasonable efforts has been resolved. In order to accommodate the request of the parties for an immediate ruling on this matter, the following reasons are somewhat brief. The Union's claim is that the terms of the FZtployer's RFP are not in accordance with its reasonable-efforts obligations or its obligations relating to employee bidding as contemplated by paragraph 5 of Appendix 9 of the Collective Agreement. The Employer concedes that the Union has an arguable case-with respect to the former matter, but makes no such concession with respect to the latter matter. The generally accepted test to be applied in applications for interim relief has recently been endorsed by this Board in uistm of Community and Social Services and OPSEU fUniOn Grievance) 2779/96 (Kaplan). It is a two-fold test entailing an assessment as to whether there an arguable case and where the balance of potential harm or inconvenience lies. 2 After an assessment cf the evidence and consideration of the submissions of counsel it 'wa s my conclusion that the Union is entitled to interim relief on the basis cf its first position. There is therefore no need to address tha evidence and argucezt relating to the second matter. As previously noted, the Employer conceded tfiat the Union had an arguable case in connection with its first position. Accordingly, in connection with this matter, the only issue to be determined is where the balance of potential harm or inconvenience lies. Certain documentary evidence was filed on consent and the Employer adduced evidence from Mr. P. Ginn, manager of the highway outsourcing programme with the Ministry of Transportation. There are two employees, an Electronic Technician and a Highway Equipment Operator 3, who are affected. The tender contemplates the hiring of these employees at at least 85% of their salaries and recognition of their service, with no probationary period, A sum of money has been allocated to improve terms and conditions of employment. Mr. Ginn testified that in contemplation of the divestment the number of employees has been reduced as a result cf attrition and by virtue of employees finding other positions. He testified that the Employer is presently experiencing some difficulties in prsviding the necessary coverage with this small crew. However, certain 3 work can be and is performed by an outside contractor on an as needed basis. Mr. Ginn referred t3 the savings that have been achieved in similar divestments and indicated that the Employer is anxious to realize similar savings in cannecticn wiU? this matter, in accordance with its business plan. He referred to ongoing uncertainty about this matter as having a negati*je effect on staff morale. He also testified that the Employer is concerned about a possible claim by the preferred bidder, IlclOS, if the process does not proceed on June 3, 1993, as contemplated. Mr. Ginn testified that if AMOS is net successful, other options, such as contracting out to the local municipality, would be pursued. The essence of Mr. Marvy's submission was that any relief that the Vnion might ultimately be entitled to in connection with recognition of other terms of the Ccliective Agreement,, including seniority, can be compensated in damages, Mr, Marvy referred to the fact that the Union did not adduce any viva D evidi:<nce relating to the issue of relative harm or inconvenience. The essence of Mr. Leeb's submission was that once the terms of the contract have been finalized, as they will be if interim relief is not ordered, the opportunity for inclusion of tefrins which ought to be included pursuant to "proper" reasonable effcrts 1s irretrievably lost. Mr. Leeb took issue with the proposition that such matters could be quantified in a damage award. On the basis of the documer'tary and viva vote evidence I__- before me, the decisions I -.as referred to and the submi.%sio;ls of Mr. Leeb and Mr. Marvy,. it is my conclusion that a pr2per balance of the relative hxm and inconvenience compels th‘z conclusion that the application succeed. The Employer'c, wish to finziizg this matter and proceed with the divests-dnt a6 quickly as possible is anc2erstandable. However, there can be no doubt that the Employer -&FL ?I ultimately be proceeding with the divestrnsnt and I am not persuaded that there is any real issue of liablity in relation to IMX or any other matter in conne:ction with a delay in ttz divestment which outweighs the pctential difficulty of attempting tn provide full remedial relief after a contract has be-,n finalised. This Boar3 has been sensitFve to the neec?s of the ;-irties tc have cer-cain matters dealt with expeditiously and it is likely that the merits of the matter can be heard and Eaalt with quiiskly. I understand, further, that a decision in another matter k~_i ch is presently befcre this Board may be of assistance to t.ne parties in resolving this matter. It is my order that the Employer is restricted from proceeding furtt.er with the tender process until the reasonable efforts ‘;. 'ssues l-n connection with this matter are resolved by the parti,Ls or this order is varied by the Vice-Chair assigned t', dez,l :;it:h the merits cf the grievance. I am not seized with the mer i-L s of the grievance. Mr. Marvy expressed concerns about a FAential for the Employer's actions being restricted for an 5 extended period, 'as long as the Union maintains that there is something further that might be done in connecticn with reasonable efforts. In my view, this concern can be accommodated by the ability of the Vice-Chair assigned to hear the merits of the grievance to address this matter at any time ahd in any manner which the Vice-Chair determines is appropriate. The hearing of the merits of the grievance is tc be scheduled by the Registrar in consultation with the parties. A final matter that must be addressed is a request by Mr. Marvy that I establish general directives relating to interim relief applications or, alternatively, direct the Chair to do so, It is my understanding that there is a commxittee of the Grievance Settlement Board in which representatives of the parties address such matters, Their expertise, along with the administrative expertise of the Board which is present in the committee, makes this a more appropriate forum for the concerns raised by Mr. Marvy. Dated at Toronto, this 3rd day of juned 1998 PI.&&& S.I,: Stewart - Vice-Chair