GSB# 0518/03
UNION# 2003-0999-0017
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Richard Brown
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Mary Gersht Counsel Management Board Secretariat
HEARING
May 26, 2003.
Decision
This policy grievance is the latest in a series of three arising from the privatization of driver-examination services. The union challenges two decisions made by the Ministry: the decision to allow certain employees to re-elect whether to transfer to the new service provider; and the decision to deny other employees any opportunity to make such an election.
I
The chronology of events leading up to this grievance begins in November of 2001, when the union received formal notification of the Ministry’s intent to privatize driver-examination service. Three hundred and fifty-four classified employees then elected whether to follow their jobs to the successful bidder, who had not yet been chosen, or to take an enhanced severance package under Appendix 18 of the collective agreement. A confidential information memorandum (CIM) was issued to qualified bidders on December 18, 2001. Unclassified employees were converted to classified status if, prior to the issuance of the CIM, they had reached the two-year benchmark for conversion contained in the collective agreement then in force.
In the first grievance, dated January 25, 2002, the union contested the Ministry’s refusal to convert employees who completed two years of service after the issuance of the CIM. In OPSEU and Ministry of Transportation, GSB File No. 02211/02, decision dated October 24, 2002, I allowed the grievance, directed the employer to convert all unclassified employees who had reached the two-year mark by September 17, 2002 and remained seized of any issues arising in the implementation of the award.
After receiving the conversion decision, the parties entered into a memorandum of settlement dated December 19, 2002. The first two paragraphs of the memorandum state:
The Employer agrees to convert all the employees listed in Attachments “A” and “B” in accordance with Article 31.15 of the collective agreement, from the unclassified service to the classified service. The effective date of conversion shall be the same as the date this Settlement is executed by the parties. The parties agree that all employees listed in Attachments “A” and “B” shall have the option to elect to transfer to the new service provider.
(a) Subject to paragraphs 3 to 5 below, the parties agree that the employees listed in Attachments “C” and “D” at the time of the execution of this Settlement are not eligible for conversion. However in the event that any of these listed employees become eligible for conversion after September 17, 2002 up to and including the day before the successful proponent is announced these employees will be converted to classified status if they have completed 18 consecutive months of full-time service during this time period, and have satisfied the requirements of Article 31.15. The effective date of conversion shall be the date that they were eligible for conversion.
(b) The parties agree that any employee that has completed 18 consecutive months of full-time service as of the date of the signing of this Settlement and is eligible for conversion in accordance with Article 3 1.15 shall have an option to elect to transfer to the new service provider and that such employees shall have the same rights as those employees converted pursuant to paragraph 1 above.
(c) The parties agree that unclassified employees who become eligible for conversion pursuant to paragraph 2(a) above after the date of the signing of this Settlement but before the successful proponent is announced shall have no option to elect to transfer to the new service provider. The parties further agree that the rights of these unclassified employees shall be limited to those outlined in section 5.2 of Appendix 18.
The memorandum of settlement refers to the benchmark for conversion as being eighteen months because the collective agreement had been amended before the settlement was negotiated. Based upon when unclassified employees reached the eighteen-month mark, the settlement divided them into three categories with different rights:
Those reaching this mark by December 19, 2002 are entitled to be converted, effective that date, and they are granted an election whether to transfer to the new service provider;
Those reaching the eighteen-month mark between December 19 and the announcement of the successful proponent are entitled to be converted upon reaching the mark, but they are not granted an election; and
Those reaching the mark after the announcement are entitled to neither conversion nor election.
There were one hundred and seventy-nine unclassified employees in the first category. They were converted on the date of the settlement; in January of 2003, they elected whether to transfer to the not-yet-identified new service provider or to take an enhanced severance package. The second category is comprised of thirty-nine unclassified employees who were converted between the settlement and the naming of the successful bidder.
On January 8, 2003, the union filed a second policy grievance contending classified employees who had made an election in November of 2001 should be allowed to re-elect because of “lengthy delays” in the privatization process. The employer raised a preliminary objection that the grievance was barred by the settlement of December 19, 2002. This objection rested in part upon the union’s unsuccessful attempt to have the settlement provide a right of re-election for these employees. I dismissed the preliminary objection in OPSEU and Ministry of Transportation, GSB File No. 2445/02, decision dated March 4, 2003.
While the first two grievances were being addressed, the Ministry continued its dealings with prospective bidders. The CIM was amended in December of 2002 to indicate a total of 450 employees might choose to transfer to the new service provider. This figure included the already classified employees, who first elected in November of 2001 and for whom the union was seeking a right of re-election, as well as the employees converted effective December 19, 2002 who would be making an election in January of 2003. The successful bidder, Serko Des Inc., was announced on February 25, 2003.
On May 8, 2003, after receiving the decision dismissing the preliminary objection to the second grievance, counsel for the employer wrote to counsel for the union concerning that matter. The relevant portion of that letter states:
In the above noted grievance the Union alleged that the Ministry has acted unreasonably in that they have not allowed classified employees in the Driver and Vehicle Examination Services who were put to an election in 2001 to make a new election (re-elect). On a without precedent basis and without any admission as to liability or and admission as to any right to a re-election, (which is not admitted but specifically denied,) the Employer has decided to exercise its managerial discretion to permit all affected classified employees to elect whether to opt in or out to transfer to the new service provider. The Employer advises that in order to treat all affected employees fairly and also for business reasons, all affected employees who elected in January, 2003 pursuant to the Minutes of Settlement dated December 19, 2002 will also be provided with an Election Form to opt in or out of a transfer to the new service provider.
Election forms were sent to employees on May 9 and they were directed to respond by May 16. Of the approximately 475 employees invited to re-elect, 14 decided to follow their jobs to the new service provider. A total of about 50 employees had made this choice in the two initial rounds of elections in November of 2001 and January of 2003.
II
The instant grievance was prompted by the employer’s decision to grant an opportunity to re-elect to the 179 employees who were converted to classified status on December 19, 2002 and in January of 2003 made their initial election about transferring to the new service provider. Characterizing this decision as an improper exercise of management rights outside the collective agreement, union counsel argued the Ministry, without any legitimate governmental purpose, unfairly differentiated between two groups of employees by allowing the 179 converted on December 19, 2002 to re-elect while denying any election to the 39 converted thereafter. The relief sought by the union is twofold: (1) a declaration that the Ministry should not have unilaterally invited the 179 employees to re-elect; and (2) an order directing the Ministry to allow the 39 employees to make an election. By way of a preliminary objection, employer counsel submitted this grievance is barred by the settlement because it explicitly states employees converted after December 19, 2002 have no right of election. In the alternative, counsel argued the Ministry acted for legitimate business reasons and treated employees fairly by allowing all those with a right of election to re-elect in May of 2003 after the successful bidder had been announced.
III
I begin my analysis by considering whether the Ministry is ever entitled to invite employees to re-elect about transferring to a new service provider. The right of election is governed in general terms by Appendix 18 of the collective agreement. In the instant case, the memorandum of settlement contains terms dealing with the right of election for converted employees. The questions of whether re-election is appropriate can be answered only by reference to the collective agreement and any more specific accord between the parties. As election is a matter regulated by the collective agreement, the management rights reserved to the Ministry do not permit it to grant employees an opportunity to re-elect.
Having decided the Ministry may invite employees to re-elect only if permitted to do so by the collective agreement or any applicable accord, I decline on two grounds to decide whether the re-election by employees converted on December 19, 2003 was proper. A declaration on this point would provide no significant guidance for the future because the case at hand involves a highly unusual factual scenario that is almost certain not to be repeated. In addition, I would not grant the order requested by the union even if the re-election in this case was improper.
The order sought is one directing the Ministry to allow 39 employees, those converted between December 19, 2002 and the naming of the successful bidder, to make an election. The memorandum of settlement expressly states those converted during this period have no right of election. Union counsel contended the Ministry cannot rely upon this portion of the settlement because other elements of it were contravened by the re-election granted to the 179 employees converted on December 19, 2002. In my view, even if this re-election was in contravention of the settlement, it did not detrimentally affect the 39 employees for whom an election is now sought. Accordingly, even if the settlement had been breached in the manner alleged, I would deny the order requested because it would not remedy any harm caused by the alleged breach.
Dated at Toronto this 4th day of June 2003.