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HomeMy WebLinkAbout1997-1614UNION98_04_28 . ONTARIO 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 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB #1614/97 OPSEU #97U125 IN THE MATTER OF AN ARBYTRA TYON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Umon Gnevance) Grievor - and - The Crown III R1ght of OntarIO (Mimstry of TransportatIOn) Employer BEFORE L Mikus Vice-Chair FOR THE G Leeb UNION Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE S Patterson EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING April 8, 1998 ~ I ThIS gnevance anses from the "Who Does What" process under Appendix 9 of the collective agreement. That Appendix, m short, reqUIres the Mimstry to make reasonable efforts to ensure that, when there IS a transfer of bar gal rung umt work to the pnvate sector, employees In the bargammg urut are offered pOSItIOns WIth the new employer on terms and conditions as close as possible to theIr eXIstmg pOSItIOns on the basIs of semorIty The Mirustry advIsed the Umon on June 18, 1997 that It Intended to transfer approximately 3400 kilometres of hIghway to varIOUS mumcIpalItles The Umon was also advised that the decIsion to downsIze would result In surplus notices to more than fifty employees The Umon was subsequently advised In February of 1998 that, although the roads had been- transferred on January 1, 1998 as planned, agreements had been sIgned With most affected mumclpalItIes to contInue mamtenance throughout the wmter season until April 15, 1998, With the costs beIng , charged back to the mUnIcIpalItIes As a result, no surplus notIces had been Issued as of the date of the hearIng. As well, as of the date of the hearIng, despite what the Mimstry described as "more than reasonable efforts", no bargamIng urut members have received Job offers from any of the mumclpalItIes Involved, The Umon filed a gnevance dated October 1, 1997 allegmg that the Employer was m ViOlatIOn of articles 19 and 20 and Appendix 9 of the collectIve agreement and askIng for an order that the Mimstry meet ItS obligatIOns under the collectIve agreement At the first day of hearIng Mr Patterson, counsel for the Mimstry, raised the followmg 2 prelImmary matters 1 Who should proceed first? 2 Is the gnevance premature m that no employees have yet been affected and the partIes have not yet exhausted the prelIm10ary stages of consultatIOn as set out m the collectIve agreement? 3 Are thIrd party notIces reqUIred? In partIcular, are the other bargaIn10g umts affected by the transfer of employees entitled to notIce of the proceedIngs 4 Is the Employer entItled to a clearer statement at the commencement of the remedIes sought by the Umon, especIally smce negotIations WIth the mumclpalItles IS ongoIng and the redress requested mIght change? Deal10g with the first Issue, the Employer took the posItIOn that the onus was on the Umon to establish a prima facie case before the Employer should be expected to call ItS eVidence The Employer IS entitled to know the case It must meet before It can be expected to defend Itself The Umon argued that It had established a prima facie case once It showed that more than fifty Jobs were bemg transferred to the mumclpalItles, that the Employer's oblIgatiOns under Appendix 9 Included reasonable efforts to secure employment for those employees and that the Employer had failed to obtaIn even one Job through ItS negotiatIOns. The onus, the Umon contended, then shifts to the Employer to show that It has made reasonable efforts despIte the unsatIsfactory results Mr Leeb, for the Umon, contended that there was an equally compellIng reason to reqUIre the Employer to proceed first and that was the fact that the Employer IS 10 the umque pOSItiOn of know1Og what transpIred at the negotiatIons and therefore IS the only one who can address the Issue of whether those negotIations were adequate In the CIrcumstances The Umon pOInted out that, In all the cases that have been heard so far under Appendix 9, the Employer has agreed to 3 . call ItS eVIdence first The reason, argued the Umon, IS that It makes sense to do so It alone can tell the Board what proposals and posItiOns were exchanged and the content of the discussions concernmg them, The Employer has been mstructed by the Kaplan Board as to what IS reqUired In ensunng "reasonable efforts" have been taken to fulfill ItS obhgatiOns under the collectIve agreement (Re Ministry of Community and Social Services and OPSEU (Union Grievance) (June 2, 1997), GSB # 2779/96 (Kaplan) and Re Ministry of Transportation and OPSEU (October 29, 1997), GSB # 1344/96 (Kaplan) Mr Patterson, counsel for the Mimstry, took the pOSItion that at one time the Umon argument regardIng the Employer's knowledge of the CIrcumstances might have been true, but, SInce the Kaplan awards that IS no longer the case The Umon, through the committees set out In the collectIve agreement and pursuant to the dIrectIons of the Kaplan Board, IS, throughout the process, aware of all the steps taken by the Employer Through the disclosure process mandated by those awards and article 22 144, the Umon has as much InformatIOn about the Employer's actIvItIes on behalf of ItS employees as the Employer It can therefore no longer be Said that the Employer holds mformatlon peculIar to the case that the Umon can not and does not possess. With respect to the second Issue, that IS that the gnevance IS premature, the Employer took the pOSItIon that artIcle 19, Multiple Lay-OfTs, specIfically deals WIth transfers of work mvolvIng more than fifty employees In that artIcle, the partIes have agreed that Issues related to lay-off, dIsplacement and recall shall be referred to the JOInt Employment Stability Subcommittee (JESS) The referral and consultatiOn process at the JESS IS, m the Employer's submiSSIon, a necessary 4 precondItiOn to proceedIng to a gnevance That process IS still ongoIng, Even now the MinIstry IS trymg to negotiate WIth the mUnIcipalItIes to persuade them to offer the affected employees Jobs. The facts as they eXIst today could change from day to day dependIng on the outcome of those negotIatIOns The MinIstry stressed that It IS commItted to the process and remaInS optImIstIc that It can succeed In ItS efforts. As further proof of the premature nature of the gnevance, the Employer pOInted to article 22 13 1 which reqUires that gnevances be filed WIthIn 30 days of the CIrcumstances giVIng rIse to It. ThiS gnevance IS dated October 1, 1997 and, at that time, there were no CIrcumstances that could give rIse to a grIevance The gnevance was antiCIpatory Even now several months later, nothmg has happened to preCIpitate a gnevance The UnIon took the pOSitiOn that the Kaplan Board has determIned that the Employer's oblIgation to seek employment for ItS employees arose when the deCISIOn to transfer the work was made In thiS case, that meant the obligation arose even before the Umon was first notified of the Employer's deCISIon to transfer the hIghways to the murucIpalItles Not one Job offer has been forthcommg and that, argued the Umon, IS SImply unacceptable As well, even though no employees have yet receIved surplus notIces, the local Umon representative was told they were to be Issued on AprIl 20, 1998 That makes sense because the contracts WIth the mumcIpalItles expire on April 15, 1998 If the Employer's oblIgatIons under the collective agreement began before June 17, 1997, It had more than four months to take steps to fulfill those obligatIOns before the grIevance was filed. It dId not and the Umon was entitled to file a grIevance In the 5 CIrcumstances The Uruon took the posItIon that the referral to JESS IS not mandatory Article 19 2 2 states that the mandate of the commIttee IS to consIder Issues arIsIng out of an employer's decIsIOns whIch affect the employment of 50 or more employees It further states that eIther party "may" table the matter for consIderatiOn and that the subcommIttee "may" make any recommendation that seems appropnate In the CIrcumstances. The parties have never treated the JESS as a mandatory stage In the process and thiS Board should not read that reqUirement Into thIS collective agreement The third Issue concerns the remedies sought by the Umon. The Employer took the pOSition that It was entitled to know what the Umon wanted before the hearIng proceeded any further It should be ordered to tell the Employer what It wanted by way of "reasonable efforts" and what damages, If any, It believes mIght be due If the gnevance succeeds The Mimstry IS entItled to know the Impact the Umon's remedies mIght have on the process, espeCially consldenng the fact that the process IS ongomg. The Umon, on the other hand, took the pOSitIon that the remedies It was seekIng In the gnevance Itself were compliance and disclosure It might be that, as tIme goes on, other remedies will become ObVIOUS or necessary For example, presently the Umon might ask that no surplus notIces be Issued. However, If the surplus notIces have been Issued by the time the case IS completed, the Umon might seek reinstatement of the affected employees The Umon should be free to fashion ItS remedIes based on the circumstances at the tIme and not be held to a pomt m time that IS no longer relevant 6 Finally, the Mimstry raIsed concerns about whether It would be approprIate or even necessary to gIve notIce of the heanngs to the umons representIng employees In the muruclpalItles Involved Accordmg to Mr Patterson, the major stumblIng block In the negotiatIOns WIth the mumclpalItles has been the refusal of the umons mvolved to approve a transfer ofOPSEU bargammg umt member mto their bargammg umts He quened whether, In the cIrcumstances, they, or the mumclpalItIes themselves, should be gIven notice of these hearIngs Mr Leeb suggested that, If the Employer beheved It was approprIate to mclude additIonal partIes, the appropnate course would be to schedule a hearIng before this Board to argue that Issue fully DECISION Smce the InclUSIOn of AppendiX 9 m the collective agreement, much energy and time has been spent m attemptmg to determme what "reasonable efforts" means I was provIde With a lengthy draft proposal of the government entItled GUIDELINES ON THE TRANSFER OF EMPLOYEES WITH THEIR JOBS OR FUNCTION AND EMPLOYEE BIDDING dated March 14, 1997 After the two June deCISIOns of the Kaplan Board (supra), a memo dated June 20, 1997 was Issued to all Deputy Mirusters and ChIef AdmInistratIve Officers outlInmg the rulmgs m those awards and settmg out new gUidelInes regardmg "reasonable efforts" A further draft entitled INTERIM REASONABLE EFFORTS INSTRUCTIONS TO MINISTRIES was dated January 20,1998 and was prepared after the JudIcIal reVIew of the Kaplan award mvolvmg the Mimstry of TransportatiOn. Those proposals are proof of the Importance to the partIes of the prOVISIon Itself and of preVIOUS Board deCISions concernIng ItS mterpretatlOn and applIcatIon. As the Mimstry stated m Its June 20, 1997 memo 7 . ObvIously these decIsIon have a sIgmficant Impact on mmlstnes abilIty to deliver on theIr busmess plans Of equal Importance to the parties IS the process of adJudIcatIng disputes under Appendix 9 They have asked for prelIrrnnary rulIngs on that process m order to expedite the heanng on the merIts My determmatIon of the Issues raIsed In the mstant grIevance should not be mterpreted as general rulIngs regardmg procedure m future reasonable efforts cases under Appendix 9 They are based on and apply to the facts of this case and mayor may not apply to other fact situatIOns that might anse In other circumstances With regards to the first Issue, It IS my VIew that the Employer should proceed first I appreciate that, m the normal course of events, the onus would be on the Umon to prove ItS case by callmg eVIdence that the Employer would then rebut, If necessary It has long been recogmzed, however, that there are exceptIOns to the rule, the most obviOUS beIng cases InvolvIng dISCIplIne or discharge Some arbitrators have taken a more flexible approach to the general rule and asked employers to proceed first In Job competitIOn grIevances where they felt the reasons for the rejectIOn or acceptance of a candIdate were known only to the employer In those cases, the umon must have establIshed as a mmImum that the gnevor applied for the Job In questiOn, possessed the necessary qualificatIons and was the semor candidate In thIS case the U mon has established a prima facie case Insofar as It has shown that more than fifty employees will be affected by the transfer of hIghways to the mumclpalItles, that the Employer has an oblIgatIOn under the collectIve agreement to make "reasonable efforts" to try to 8 secure employment for those employees and that, to date, no Job offers have been made to the affected employees In the Kaplan decIsIon of June 8, 1997 he stated, at page 19, the followmg' In thIs case, I have concluded that the employer breached Its obligatIon, and I reach the conclusiOn for a number of reasons First of all, the fact IS that the bid preference MBS devIsed did not help anyone get a Job It made no difference whatsoever Surely one way of judging whether efforts are reasonable is to consider their results. ( emphasIs mme) That does not mean that the burden of proof ShIftS to the Employer It IS still up to the Umon to prove ItS allegatIons based on the eVIdence. However, m these cIrcumstances, the Employer should proceed first to present ItS eVIdence Despite the extensive dIsclosure of InformatIOn between the partIes, the Employer IS the only party who can tell this Board what transpired dUrIng the negotiatIOns WIth the mUllIcIpalItIes It alone can explaIn what financIal InCentIves or mducements were offered, If any, and the reasons for the reJectiOn of those offers The second Issue concerns the Employer's assertIOn that the grIevance IS premature because the Issues raIsed have not been completely processed through the JESS and negotiatIons are contmumg WIth the mUllIcIpahtIes I refer to the Kaplan deCISion of June 2, 1997 whereIn he SaId, at page 19 Havmg Said that, It IS my VIew that the reasonable efforts obligatIOn begms as soon as the deCISiOn to divest IS made It IS not confined solely to employees who have been IdentIfied for surplus It applies to all employees In a facilIty for, as thiS case demonstrates, It IS ObVIOUS that the oblIgatiOn cannot be applied pIecemeal when an entIre facihty IS bemg closed down and the work transferred to the BPS Certamly, the oblIgatIon to make reasonable efforts does not anse only when speCIfic employees are Identified for surplus for that IdentificatIon may take place at a tIme when no reasonable efforts can be made Moreover, as employees will be generally surplused by SellIOrIty, divestment plans must take that Into account and ensure, Inasmuch as possible, that semor employees are not 9 effectively depnved of the benefits of the proVIsIOn, If the oblIgatIons under AppendiX 9 begm as soon as a deCISiOn IS made to divest a mInistry of any Jobs or responsibilities such that the employment status of the employees IS affected, a breach of that obligatIOn could occur at any tIme after the deCISIon, mcludmg the time before surplus notices are actually Issued or lay-offs actually occur If It can be shown that the Employer has failed to honour ItS obligatIOns under the collectIve agreement, It IS not necessary to Walt until mdIvIdual employees are affected. The Employer's argument that the JESS commIttee IS a mandatory step m the process and a pre- condItIOn to proceedmg to the gnevance procedure IS not borne out by the language of the collective agreement The partIes "may' make submISSions to the committee on outstandmg Issues There IS no express reqUirement that the partIes must funnel Issues through that committee and no reference to a penalty for a failure to do so NothIng m the language of article 19 expliCitly or ImpliCItly leads to the conclUSIOn that the partIes mtended It to be mterpreted m the manner suggested by the Employer The thIrd Issue concerns the Employer's request from the Umon for a clear partIculanzatiOn of the remedy requested In the event thIS gnevance should succeed It IS not unusual to bifurcate a hearIng mto two separate heanngs on the ments and damages Oftentimes, the remedy sought depends on the findmgs of a tribunal and are best left for another day In thIS case, the Employer IS still engaged In negotiatIOns WIth the mUnICIpalities and IS hopeful that It can succeed m obtmrung work for some of the employees If there IS ultimately a findmg that the Employer has 10 breached the collective agreement, the remedIes necessary to readdress that breach rmght be very dIfferent from those that are appropnate today To the extent that the UnIon knows what It IS seekIng by way of redress, It IS ordered to adVIse the Employer as soon as possible of ItS demands The UnIon IS not, however, restncted to the list and may add to, delete from or modify that lIst as IS approprIate as the heanng progresses That takes me to the final Issue, that of third party notIce to the mumcIpalItles mvolved and their umons Because the Issue was raised for the first time at the heanng, the parties were unable to make complete legal submIssIons on the matter Based on what I was told, my mstmcts tell me that no third party notIces are reqUired m the circumstances Any orders I might make pursuant to thiS award can only bmd the Employer and the Umon, I do not have the authonty to order the mumclpalItles to hIre any of these employees, any more than I have the authonty to order the umons to agree to accept these employees mto theIr bargammg umts wIth or without semonty Nevertheless, If eIther party Wishes to reconvene the Board to make further submISSion m thiS regard, they can contact the RegIstrar to arrange for a SUItable date We will contmue the hearIng mto thIs matter on the dates agreed to by the parties Dated at Toronto, thIS 28th day of April, 1998 ~4 #~ Loretta Mikus, Vice-ChaIr 11