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HomeMy WebLinkAbout1997-1712UNION98_01_30 .'. 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 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO {ON} M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1712/97 OPSEU # 97U150 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Management Board SecretarIat) Employer BEFORE N DIssanayake Vice-ChaIr FOR THE G Leeb UNION Gnevance Officer Ontano Public Servtce Employees Umon FOR THE D Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat - HEARING January 9, 1998 and January 19, 1998 2 DECISION The union filed a grievance dated December 2, 1997, alleging that the employer was "not complying with Appendix 9 in respect to the Government Mobile Communications Project" This matter came before me in the form of an application for interim relief, pending the determination of the merits of the grievance However, following opening statements the union withdrew its application for interim relief The union, nevertheless, maintained that even if all affected employees are in fact offered comparable employment, the employer had still failed to comply with the "reasonable efforts" obligation in that it failed to adequately communicate with the union during the divestment process The union expressed its wish to proceed with the merits of the grievance on that basis and to seek a declaration that the employer had failed to comply with its "reasonable efforts" obligation The parties agreed to proceed with the merits of the grievance before me The Government Mobile Communications Project ("GMCP" ) is a divestment process, whereby the government of Ontario was seeking to select a private sector organization to undertake the maintenance and eventual replacement of its present mobile communications systems with a single upgraded system The evidence is that currently bargaining unit staff is involved in maintaining and operating 5 overlapping and technologically out-of-date analogue radio systems for the use by staff of the Ministries of Solicitor General and Correctional Services, Natural Resources, Health, '- Transportation and the Management Board Secretariat These systems did not have the capacity to provide the type of two-way communications allowed by 3 modern digital systems, which the employer considers to be far more efficient The current systems in any event had only approxlmately 6 years of life left before requiring replacement In these circumstances, the employer decided to seek a private organization, through the use of the Common Purpose Procurement (CPP) process, (1) to take OVer the current systems and to operate them and (2 ) to have that organization implement a new system with the modern digital technology, which will provide reliable voice and data communications capabili ties to OPS staff operating anywhere in the province The new system was to have the potential for future expansion to be able to provide the two-way radio communications needs of the broader public sector (e g Municipal police, fire and ambulance services) Mr Mike McInerney, the Manager of GMCP and a specialist in Mobile Communications, testified how the CPP process worked In the regular RFP process, the government would have had to do all of the detailed research and prepare a design for the system it wants before the RFP is released In order to respond, potential respondents would have to repeat that same research and estimate the cost There duplication of work drives the cost up - In a RFP issued under the CPP process, the goal is to come to an arrangement with a respondent to achieve a common purpose In the RFP, the government would broadly describe what it wants For example, in the GMCP, the government would state that it is seeking to replace its existing t I" mobile communications systems, with using modern digital a new system technology capable of providing better information and safety to the users 4 Anyone able to provide that is expected to respond Once responses are received by the closing date of the RFP, the process enters the next phase called the "due diligent phase" The government reviews the technological and financial capabilities of each respondent and through elimlnation, comes up with a short llst of two companies Those two companies then go through a process of executive interviews followed by oral presentations during which they make commitments to the government as to various technological, financial and staffing issues Taking into account all of the information received, the government selects one of the two companies to pursue further negotiations A memorandum of understanding is developed with the selected company, setting out the rules that will govern the negotiations for a final agreement The other company on the short list is not eliminated at this point, but is retained on stand-by in the event negotiations with the selected company fails This is followed by negotiations with the selected company with regard to the GMCP, a Request for Proposals (RFP) under the CPP process was released on July 3, 1997 with a closing date of August 28, 1997 which date was subsequently extended to September 18, 1997 The government undertook to provide to the successful candidate a block of frequencies on which the system can operate on, the required infra-structure including the towers and other equipment, and a commitment to spend $ 20 million for maintenance The government undertook to provide a current base of some 16,400 users, which could increase to 30,000 with expansion to the greater r. public sector \ '- 5 In the CPP process following the issuance of the RFP, on October 3, 1997 a short-list consisting of Bell Mobility and HSL Systems House was established Ultimately, at the end of November 1997 Bell Mobility was selected for negotiations, while HSL remained on stand-by The evidence indicates that during the due diligence phase Bell Mobility and HSL made several inquiries relating to human resources issues In response the government provided information including the salary levels of the OPS posi tions impacted by the divesting ini tiati ve The evidence also indicates that during the oral presentation held on November 12, 1997 the Project Director of Bell Mobility gave the following commitment "We are also committed to assuming the staff that become potentially surplus as a result of this network facility going into place Some of the discussions we had with the government during the due diligence stage came to indicate that we approximate will have 20-25 potential staff that might wind up being surplus as a result of this project We will assume those staff and use those people for this particular network facili ty wi thin the context of our overall network services There are a significant number of opportunities within the organization that are on the Blue Team now to provide services in the wireless arenas because of our breadth and scope We've made a commitment to take those staff" Mr McInerney testified that while HSL also made a commitment to employ surplus OPS employees, the Bell Mobility commitment was much clearer direct and more positive Mr McInerney received the assurance from Bell Mobility that the wages and benefits for the OPS employees absorbed by it will be at least comparable to their existing wages and benefits under the OPS collective agreement At the hearing, the employer maintained its position that it had obtained an assurance from Bell Mobility that it will make job offers to \ all affected bargaining unit employees with terms and conditions at least comparable to existing terms and conditions Counsel took the position 6 that in the circumstances no question of a breach of the reasonable efforts obligation could arise The union disagreed that the obtaining of job offers by itself does not fully meet the reasonable efforts obligation It took the position that the reasonable efforts obligation under Appendix 9 included a distinct obligation on the employer to meet with the union regularly in order to provide information to the union and receive input from the union The union claims that this obligation to meet must be complied with independently of the obligation relating to obtaining job offers from the new employer In other words, the duty to meet is independent of the duty to make reasonable efforts to obtain job offers The former may be contravened even where the later is complied with The reasonable efforts obligation is one imposed ~n the employer by the collective agreement Mr Leeb for the union, conceded that it is very unusual for an employer to be mandatorily required to consult with the union as to how its collective agreement obligations are to be complied with However, he submits that this is the case under Appendix 9 The relevant provisions of Appendix 9 read as follows The Government is aware that its restructuring initiatives over the next two fiscal years (1996/97, 1997/98 ) could have a significant effect on employees, some of whom have served for a lengthy period Accordingly, commencing with the ratification of the collective agreement and ending on December 31, 1998, the Employer undertakes the following 1 (a) the Employer will make reasonable efforts \ to ensure that where there is a " disposi tion or any other transfer of bargaining unit functions or jobs to the private or broader public sectors, - 7 employees in the bargaining unit are offered positions with the new emplojer on terms and conditions that are as close as possible to the then existing terms and conditions of employment of the employees in the bargaining unit, and where less than the full complement of employees is offered positions, to ensure that offers are made on the basis of seniority When an employee has been transferred to a new employer he/she will be deemed to have resigned and no other provisions of the collective agreement will apply except for Article 53 or 78 (Termination Pay) (b) Where the salary of the job offered by the new employer is less than 85% of the employee's current salary, or if the employee's service or seniority are not carried over to the new employer, the employee may decline the offer In such a case, the employee may exercise the rights prescribed by Article 20 (Employment Stability) and/or paragraphs 2 or 5 of this letter The employee must elect whether or not to accept employment with the new employer within three (3) days of receiving an offer In default of election, the employee shall be deemed to have accepted the offer The union concedes that there is nothing in the language of Appendix 9, which directly or indirectly creates a specific obligation to meet with the union However, the union relies heavily on a decision of this Board in Re OPSEU and MeSS, 2779/96 and 141/97 (Kaplan) as the authority for the proposition that Appendix 9 includes a distinct obligation to meet with the union as soon as the employer has made the decision to divest In that case, the Board reviewed the efforts made by the employer to obtain job offers in compliance with Appendix 9 and concluded that those efforts were not reasonable Then it went on at pp 18-20 i "- Having reached this conclusion and having made this -"" declaration, this is an appropriate case, ~ in my view, to set out a non-exhaustive general list of some of the kinds of steps management should take in order to - - 8 comply with Appendix 9, as well as direct some specific remedies to deal with the breach Obviously, each case will differ and in each case the employer will have to carefully consider what it is about that case which is distinctive and which therefore calls for a new or different approach The fact is that the privatization program will be carried out in different ministries in different ways and the words "reasonable efforts" must be interpreted in a way that makes sense Before turning to the specific relief being granted in this case, a number of general principles can be set out First and foremost, as employer counsel argued, making reasonable efforts does not mean "every" effort or "all efforts" It means making efforts that are reasonable all things considered, and that will, given that this is a broadly worded clause of general application, depend on particular circumstances of individual cases Having said that, it is my view that the reasonable efforts obligation begins 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 facility is being closed down and the work transferred to the BPS Certainly, the obligation to make reasonable efforts does not arise 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 seniority , divestment plans must take that into account and ensure, inasmuch as possible, that senior employees are not effectively deprived of the benefits of the provision Second, it is incumbent upon management to ~nvolve the union in discussions about how it proposes to meet its reasonable efforts obligations and to commence those discussions immediately following the decision to divest Obviously, these discussions cannot be pro forma They must be meaningful exchanges of relevant information and ideas directed at assisting the employer in discharging its obligations under the collective agreement While employer counsel suggested, should a remedy of this kind be directed, that the discussions take place ~n the context of already established ERCs, it ~s my view, given the importance and singular nature of the reasonable 9 efforts obligation, that meetings to discuss developments and exchange information should be dedicated to this subject and not included on ERC agendas dealing with workplace issues much more generally Union counsel reads the foregoing as holding that, in every case, for compliance with the reasonable efforts obligation to occur, the employer must regularly have "reasonable efforts meetingsU with the union starting as soon as a decision to divest is made Counsel submitted that in light of Mr Kaplan's decision, the Board must now read Appendix 9 as including such an obligation With respect, I do not read Mr Kaplan's decision as stating that regardless of anything else, if an employer does not have regular meetings with the union, it has thereby contravene the reasonable efforts obligation While Mr Kaplan states that "it is incumbent upon managementU to meet with the union, it is abundantly clear that he is not treating that as a mandatory requirement in every case His statement in that regard must be read subject to the preceding statement he makes at p 18 He states that what he is doing is setting out "a non-exhaustive general list of some of the kinds of steps management should take in order to comply with Appendix 9" Then he goes on to state "Obviously, each case will differ and in each case the employer will have to carefully consider what it is about that case which is distinctive and which therefore calls for a new or different approach The fact is that the privatization program will be carried out in different ministries in different ways and the words "reasonable efforts" must be interpreted in a way that makes . senseu At p 19, he observes that the phrase reasonable efforts "means making efforts that are reasonable all things considered, and that will, 10 given that this is a broadly worded clause of general application, depend on particular circumstances of individual cases" It is clear from the foregoing that, what is required for compliance with the reasonable efforts obligation in one case may not be required in another case On the other hand, what is adequate for compliance in one case may not be adequate in a different case In my view, in setting out the general principles, the Board was not promulgating mandatory requirements for compliance Rather, it was setting out precautionary steps which will assist the employer to achieve compliance In the MCCS case, the Board concluded that the efforts made by the employer was de minimis None of the affected bargaining unit employees in that case had received job offers meeting the criteria of Appendix 9 It makes sense in such a to hold that if the employer could not obtain proper job offers on its own as a part of its reasonable efforts obligation, it ought to have met with and received input from the union as to what steps may be taken to ensure that job offers are received Indeed, having found that the employer had failed to meet its reasonable efforts obligation in that case, as a remedy for the breach, the Board specifically directed that the employer meet with the union on a bi-weekly basis The foregoing, in my view, is very consistent with a plain reading of Appendix 9 One must ask, what is the obligation under Appendix 9? To "make reasonable efforts" for what purpose or goal? Clearly the purpose or goal of making reasonable efforts under Appendix 9 is to ensure two i '; things (1) "To ensure that employees in the bargaining unit are offered positions with the new employer on terms and conditions that are as close - 11 as possible to the then existing terms and conditions of employment of the employees in the bargaining unit" and (2 ) "Where less than the full complement of employees is offered positions, to ensure that offers are made on the basis of seniority" The "reasonable efforts" are directed solely to achieving these goals In OPSEU and Ministry of Transportation, 1344/96 (Kaplan) at p 30- 31, the Board described the obligation as an obligation "to make reasonable efforts to help pUblic servants, many of whom have served for a lengthy period of time, find jobs in the broader public and private sector with terms and conditions of employment meeting the threshold set out in Appendix 9 " Mr Kaplan in his decision in the Mess case described the nature of the meetings he envisaged He states that the meetings "must be meaningful exchanges of relevant information and ideas directed at assisting the employer in discharging its obligation under the collective agreement" The obligation ultimately is to make reasonable efforts to obtain job offers In the present case, the evidence is that after the employer had short-listed Bell Mobility and HSL, Bell Mobility at its oral presentation on November 12, 1997 made a clear and direct undertaking (1) to offer employment to all affected employees in the bargaining unit and (2 ) that the terms and conditions of employment would be at least comparable to the existing terms and conditions Thus at that point, the goal of the reasonable efforts obligation had been achieved That being the case, the ! Board does not find that subsequently any obligation existed under Appendix , It simply defies logic to claim 9 for the employer to meet with the union - 12 that someone can be found to have failed to make reasonable efforts to achieve a certain goal, when the goal itself has been realized It is evident from the testimony adduced by the union that its purpose in seeking meetings with the employer was not primarily to assist the employer in obtaining job offers from Bell MObility Obviously, in this case the employer obtained such an undertaking without the union's assistance or input The concern of the union was that regular meetings with the employer would have enabled it to better deal with inquiries from affected employees as to what was going on at any given time relating to the divesting process The absence of such meetings, according to the union, made it very difficult for the union to deal with the anxiety and tension that prevailed in the face of the impending divestment The union's concern is quite understandable The employer must be encouraged to provide as much information as possible to the union as and when it becomes available It simply makes good labour relations sense to do so However, while it is a prudent and sensible thing to do, that is different from saying that the employer has a legal obligation under Appendix 9 to do so, as the union claims If a distinct obligation to provide information to the union exists, it must be found outside Appendix 9 In summary, Appendix 9 does not impose a distinct obligation to meet with the union or to obtain its input in every case However, where an employer ultimately fails to obtain job offers that meet the criteria in Appendix 9, it runs the risk of it being held that getting the union's 13 assistance and input was a reasonable effort that was available, which it had failed to make use of This is supported by the decision in OPSEU and Ministry of Transportation, 1344A/96(Gray) In that case also, the employer was not successful in obtaining job offers from the new employer for the affected employees At p 13, the Board stated The test is an objective one, of course If there is an objectively reasonable effort the employer could have made, the mere fact that the employer did not think of it would not excuse its failure to make it While it did not have a distinct obligation to consult the union at the time, the employer's failure to do so exposed it to the risk that the union could later identify an objectively reasonable effort that the employer had simply overlooked and, consequently, failed to make It may be more costly to remedy such failures after the fact than to simply consult with the union as a matter of course Such a consultation might also have narrowed the range of issues that might later have been raised about the efforts that the employer ought reasonably to have made The issue here is not whether the employer acted prudently, however, it is whether the employer failed to discharge its obligation to make reasonable efforts The union bears the onus of proof on that issue (Emphasis added) I completely endorse Mr Gray's observations There is no distinct obligation to consult with the union under Appendix 9 However, if the employer ultimately fails to obtain satisfactory job offers, it runs the risk that the union may claim, and the Board may find, that had the employer consulted the union, the union would have been able to assist it to obtain job offers and that in the circumstances the failure to consult was a failure to maye reasonable efforts Therefore, to avoid that risk it is prudent for employers to consult with the union in a meaningful way 14 In the present case, the evidence establishes that the employer was able to obtain from Bell Mobility an offer to hire all affected employees l.n compliance with the Appendix 9 criteria, without too much effort or difficulty Having achieved that goal of the reasonable efforts obligation, it did not brea~h Appendix 9 by not meeting regularly with the union While the foregoing is sufficient to dispose of this grievance, it will be useful to comment upon a dispute between the parties as to when the employer's reasonable efforts obligation is triggered The union took the position that the obligation is triggered as soon as a decision is made to embark upon a divesting process such as a decision to issue a RFP or a RFP!CPP The employer, on the contrary, was of the view that no obligation to make reasonable efforts came into play until the final vendor is identified and a Memorandum of Understanding executed with that vendor setting out the rules governing negotiations for the signing of a final agreement In the MCSS case (supra) at p 19, Mr Kaplan was of the view that "the reasonable efforts obligation begins as soon as the decision to divest is made" The employer reasoned that the commencement of a RFP or RFP!CPP process does not mean that the employer has decided to divest The employer is merely testing the market to see if it should proceed to divest Thus, if no suitable responses are received or if negotiations with the selected vendor are not successful, one of the options available to the employer is to decide not to proceed with the divestment 15 It is true that the final decision to divest 1S not made until an agreement is reached with respondent However, it is inconceivable that the parties would have intended that the reasonable efforts obligation would only commence after the final agreement is reached, because by then the employer is bound by the terms of that agreement and it would be too late to make any "reasonable efforts" for any purpose In my view, it makes much more sense to find that the parties intended the obligation to begin as soon as the employer decides to embark on a divestment process, e g by deciding to release a RFP From that point on, the employer must be guided by, in addition to its own business and other goals, the goal of obtaining job offers in compliance with Appendix 9 Having said that, it must be added that, just as much as what constitutes reasonable efforts will vary from case to case, what steps the employer is reasonably required to take pursuant to the obligation may vary during the various stages of the divestment process In some circumstances, there will be little the employer can do by way of reasonable efforts in the early stages of the process In other circu.rnstances, there may be reasonable efforts the employer can make right from the beginning As the process progresses, for example with the identification of the positions to be surplussed and the short-listing of the vendors etc , the employer will be expected to be increasingly pro- active in pursuing its reasonable efforts obligation What constitutes reasonable efforts in any case at a given stage of the divestment process would obviously depend on the particular circumstances of each case , , . " ( - 16 It follows from the foregoing that in the particular circumstances of this case, the employer has not contravened its reasonable efforts obligation This grievance 1S therefore dismissed Dated this 30th day of January, 1998 at Hamilton, OntarIo ~-~~ Nimal Dissanayake Vice-Chair " - -