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Home My WebLink About1997-0498.Union Grievance.99-07-23 Decision __._m.._...... _+'__..._a ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-13g(j GSB # 0498/97, 0768/97 OPSEU # 97U073, 97U064 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario PublIc ServIce Employees Umon (Umon Gnevance) - Union -- - and - The Crown m RIght of OntarIo (Management Board SecretarIat/Mimstry of TransportatIOn) Employer BEFORE WillIam Kaplan Vice-Chair FOR THE Donald K. Eady UNION Counsel Gowlmg, Strathy & Henderson Barnsters & SolICItors FOR THE Suml Kapur EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING July 14, 1999 -' ------ _._-~_.- 2 Introduction -- In a decIsIon dated February 16, 1998, a different panel of the GSB found that the employer had breached ItS reasonable efforts obligatIons under AppendIX 9 of the collectIve agreement when it failed to gIVe any weIght to those oblIgatIons durmg a process of managed outsourcmg. The partIes were dIrected to meet and to discuss how best to divest the employer's roadway operations while givmg sigmficant weIght to the employer's reasonable efforts obligatIons MeetIngs subsequently ensued, and another VIce-chaIr of the GSB attempted to aSSIst the partIes m resolvmg theIr dIfferences through a process of medIatIOn. Unfortunately, the parties have been unable to agree on an appropnate remedy for the breach, and the case thereupon was rescheduled for hearing However, before eVIdence and argument on remedy could proceed, the unIOn made a request for dIsclosure of certain documents. -- The Union Request With two exceptIOns, the partIes were able to agree upon the documents to be exchanged and a schedule for dOIng so In brief, the union seeks employer records outlImng the cost of the work subject to managed outsourcing at the locatIons in questIon for the prevIOUS three fiscal years (1994-1997) not lrmited to labour costs Put another way, the umon WIshes to know the total m-house cost to the employer of the outsourced work in documents referred to by the partIes as mamtenance management system reports. ThIS mformatIOn IS necessary, m the case of thIS disclosure request and the other one dealt WIth in thIS award, the union argues, first to assess the damages flowmg from the breach of the collectIve agreement and, second, to assist the union in determming what type of remedial request it will ultrmately make. The unIOn also wishes dIsclosure of all documents detailing employer cost and cost savmgs achIeved by the managed outsourcmg In the unIOn's VIew, these documents - --....-.----.- ~ -~--_.._--~_. -~_._._._._-- ---.. 3 - referred to by the partIes as the owner's estImates - are arguably relevant and are ,- necessary, among other reasons, to assist the uruon in determInIng actual damages to the members of the bargaIning umt who lost theIr Jobs as a result of the managed outsourcing Acknowledging the confidentIal nature of this information - It would be useful to pnvate sector bIdders in the case of any future tenders - the umon has Indicated its willingness to enter mto confidentialIty undertakIngs. The Employer's Response In management's view, there was nothmg m the Board's February 16, 1998 deCISIOn IndicatIng that managed outsourcing was contrary to any provIsIOn of the collectIve agreement. All that decision dId, in employer counsel's view, was find that the employer had failed to consider ItS reasonable efforts obligations The matter of the remedy for that breach - and the employer asserted that no further remedy flowed from the earlIer award - was now before the Board. The employer took the posItion that the union was only entitled to those documents It needed to assert ItS remedIal claIm. With respect to the first union request, management took the position that full dIsclosure was not necessary' all the union reqUIred were the labour costs for a two fiscal year penod. It sImply was not necessary, employer counsel argued, for the employer to provide the unIOn with reports on costs on functIons stIll being performed along wIth the cost of non-labour functIons whIch were outsourced. With respect to the other unIOn request; namely, for the owner's estimates, the employer took the pOSItIon that this highly confidential InfOrmatIOn was not necessary for the prosecutIOn of the umon's claIm. The employer was willIng to stIpulate - for the purpose of thIS case but WIthout any admissIOn of lIabIlIty - that there were cost saVIngs achieved by the managed outsourCIng. Havmg so stipulated, the umon could thep advance its remedIal claim with the actual quantum of the savings not needmg to be dIsclosed until the claIm Itself proved successful. ThIS case was not a JunsdictIOnal dIspute The amount of savings, therefore, the employer submItted did not matter although the employer mdlcated that there was a saVIng of - -----.- .__._-~------ 4 5% on total expendIture of contracted out work. What mattered, and what was hIghly - contested between the partIes was the remedy for the contractual breach, employer counsel argued. The exact amount of the labour savings could be, in managment's VIew, ordered dIsclosed if, and only If, the union proved successful m this partIcular remedIal claIm. Decision Having carefully considered the submissions of the partIes, I begin WIth the propositIon that a panel of the GSB concluded that the employer was In breach of Its reasonable efforts oblIgatIons under the collectIve agreement. The remedy for that breach - and I have no view as to what remedy would be appropriate in the circumstances - is now to come back before the Board for a hearmg. In preparation for that hearIng, the unIOn has sought dIsclosure of certam documents, most of whIch have been, or WIll be, provIded on consent. The maIntenance management systems reports and the owner's estrmates are in dispute. - - It IS well-established in the jUrisprudence of thIs Board that requests for dIsclosure WIll be gIven effect where the materials In question are arguably relevant to the dIspOSItIon of the case. Apply that test to this case, I can only conclude that the mamtenance management systems reports for the three fiscal years prior to the outsourcIng are arguably relevant and should not be limIted to srmply the wage costs Accordmgly, I dIrect that they be dIsclosed to the union. No submissIOns were put before me about the need to preserve the confidentIalIty of thIS informatIOn. Should there be such a need, and should the partIes prove unable to agree on the process, that matter can be brought back before me. LikeWIse, should the employer, in the process of preparing the materials for disclosure find a document or documents subject to a specIfic privilege any Issue about the applicatIon of that privilege can be brought back before me. Needless to say, the employer can, If It wishes, edIt out Items relatIng to work whIch it contmues to perform. - -- ------ -------------~-------.-_._-------- .----..---- - 5 The owner's estImates are, however, a dIfferent matter For ObVIOUS reasons this is hIghly confidential financIal information. Clearly, they could be disclosed on terms, and I have no doubt that they would remain confidential. The Issue, however, IS whether this InfOrmatIOn IS arguably relevant. HavIng consIdered the matter - and taking mto account the employer's stipulatIOn that there was a cost savIngs on the total expendIture of the outsourced work of approximately 5% - I cannot conclude that for the purposes of advancing its remedial claim that the materials In questIon are arguably relevant. By the employer's own admIssIOn the cost savings were sIgmficant. There is no need for the union to have particulars of those cost savings for advanCing ItS remedial clarm. If the union ultImately succeeds In its submissions that the savings achIeved by the outsourCing should be directed to it and to ItS members, the dIsclosure request for the owner's estimates can be reviSIted. Accordingly, and for the foregoing reasons, that request is denied. I remam seized WIth respect to the implementatIon of my award. - DATED at Toronto this 23rd day of July 1999 (II (~ Wilham Kaplan Vice-ChaIrperson