GSB#2011-0378, 2011-0381, 2011-0382, 2011-0383, 2011-0385, 2011-0386, 2011-0387

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Chapman et al)

Association

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Michael Mitchell Sack Goldblatt Mitchell Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Labour Practice Group Counsel

REPRESENTATIVE FOR INTERVENING THIRD PARTY

Richard Novak

HEARING

January 12, 2012.

Decision

1The Board is seized with seven individual complaints, which were consolidated on agreement. The grievances are:

GSB File No: Complainant

2011-0378 Mary Chapman

2011-3081 Catherine Hermon

2011-3082 Lain Joyce

2011-3083 Scott Margerison

2011-3085 Claudio Pevide

2011-3086 Judy Steenburggen

2011-3087 Yull Winter

2The complaints arise out of the following background which was orally presented by Association counsel at the hearing on November 25, 2011. The complainants were employed in the position of Facilities Management Coordinator (“FMC”) in the Ministry’s Facilities Management Branch. These FMC positions were classified at the 19 AGA level. As part of a reorganization undertaken by the employer, all 19 AGA/FMC positions were eliminated, resulting in the surplussing of the seven complainants. The employer also created six new Regional Planning & Business Advisor (“RPBA”) positions classified at the 20 AGA level. Three of the complainants were placed into other positions following their surplussing, and the others used their seniority to bump into other positions. Two of the complainants who bumped into other positions were subsequently surplussed again from those positions. The employer posted the six new RPBA positions under the collective agreement. While many of the complainants applied, only one, Ms. Chapman, was granted an interview. Ms. Chapman was unsuccessful in the competition and has grieved. That competition grievance filed by Ms. Chapman is not before me in this proceeding.

3In an earlier decision dated December 6, 2011 in this matter, the Board set out in some detail the various alternate positions advanced by the Association in support of the instant complaints. For the present purposes, it suffices to note that the Association’s primary position was to the effect that the employer’s actions were taken in bad faith and not in pursuance of any legitimate business objectives. This decision relates to one of the alternate positions advanced by the Association, which was described in the previous decision at para. 4 as follows:

In the alternative, the Association takes the position that even if the employer’s decision was not tainted by bad faith, the core duties of the FMC positions the complainants held and the new RPBA positions remained substantially the same after the purported reorganization. The Association asserts that it was therefore inappropriate for the employer to post the RPBA positions. It submits that the complainants ought to have been assigned to the new positions without a competition and reclassified at AGA 20.

MOTION OBJECTING TO JURISDICTION

4When the Board reconvened on January 12, 2012, the employer made a motion to the effect that the Board lacked jurisdiction to determine the foregoing alternative position.

5It is noted that on January 12, 2012, the seven intervening third parties were present pursuant to notice provided by the Employer. Association Counsel advised that while no objection would be made to their participation at the present, the Association reserves the right to so object at future hearings in this matter. Therefore, the third parties (individuals who were appointed to the RPBA positions) were granted the right, and did participate, with Mr. Novak acting as spokesperson.

6The following provisions of the collective agreement are material to the positions advanced by the parties:

3.1 Subject only to the provisions of this Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development, appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer.

18.1 When a vacancy occurs in the Regular Service for a bargaining unit position or a new regular position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date. Where practicable, notices of vacancies shall be posted, within the identified area of search, either electronically or on bulletin boards.

Exceptions from the Requirements to the Posting and Filling of Positions

18.8.1 Vacancies may be filled without competition upon clearing surplus under the following circumstances:

(g) a newly reclassified position shall not be considered a vacancy for the purposes of Article 18.1 and the current incumbent shall retain the position. For clarity, surplus clearance is not required or permitted in any such reclassification;

7The employer’s primary position in support of its motion is to the effect that under Article 3.1 the employer has the right to reorganize its workforce and to create new positions and assign classifications to them, as it did here. It was argued, citing Re: Bousquet, 541/90 (Gorsky), that the Board may review the employer’s exercise of management rights only in two circumstances. First, where it is alleged that the exercise of management rights was done in bad faith, and second, where the exercise of the management right results in unduly limiting or negating a right conferred by the collective agreement. Counsel noted that the Association has alleged that the employer had exercised its management right to eliminate positions, to declare the incumbents of those positions surplus, and to create new positions, in bad faith with the motive of “cleaning house”. He conceded that the Board has authority to inquire into that allegation.

8However, the Association’s alternate position under consideration here is on the assumption that the employer had acted in good faith. In the absence of bad faith, submits counsel, the Association must satisfy the Board that a right conferred on the complainants by the collective agreement was unduly limited or negated by the employer’s actions. It was the employer’s contention that no collective agreement right of the complainants had been so affected in the circumstances of this case, and that the Board therefore was without jurisdiction to review the employer’s exercise of management rights.

9Counsel referred to several provisions of the collective agreement, which either imposed obligations on the employer to provide notice/information to the Association when eliminating positions or creating new positions. Other provisions dealt with the consequences of such employer action. Counsel submitted that these provisions do not in any way fetter the employer’s right under Article 3.1 to eliminate or create positions.

10Counsel submitted that Article 18.8.1.(g) does not assist the Association’s case, because it only applies where an existing position is “newly reclassified”. In those circumstances the employer is not entitled to post the newly reclassified position. Article 18.8.1.(g) explicitly provides that in those circumstances, “the current incumbent shall retain the position”. That provision, however, has no application here, submits counsel, because what occurred here was not a reclassification of the existing FMC positions. Rather, the FMC positions were eliminated. New RPBA positions were created, the duties evaluated and an appropriate classification assigned. Therefore, no exception from the requirement to post applied. As counsel put it, the complainants were not entitled to “competition immunity” under Article 18.8.1.(g). On the contrary Article 18.1 clearly requires that newly created positions be posted.

11Employer counsel submitted further that the Board should in any event decline jurisdiction because the instant complaints were in fact “disguised classification grievances”. Counsel reminded the Board that its right to determine the appropriateness of classifications was taken away by explicit legislative amendment. Counsel pointed out the Association’s position noted at para. 4 (supra) of the Board’s previous decision that “the complainants ought to have been assigned to the new positions without a competition and reclassified at AGA 20” (emphasis added) and that one of the remedies sought in each complaint is to the effect “Reclassify to the position of Regional Program and Business Advisor, 20 AGA”.

12Association Counsel submitted that the complainants sought reclassification at the 20 AGA level only because that was the classification assigned by the employer to the RPBA positions, which they claim are substantially the same as the FMC positions they had held. Counsel conceded that it was not the complainants’ goal to be classified higher or to increase their pay. They are merely seeking reinstatement to their positions now occupied by others, regardless of the classification the employer may choose to attach to those positions. Counsel stated that the complainants do not care whether the positions are classified at AGA 19 or AGA 20, as long as they get their jobs back.

13The Board concludes that in light of the Association’s clarification of its position on the classification to be assigned to the positions at issue, the “disguised classification grievances” theory cannot prevail. See, Re: Dobroff et al, 2003-0905 (Dissanayake), decision dated January 31, 2005.

14The remaining issue, therefore, is whether in the circumstances of this case, the Board has jurisdiction to review the employer’s actions on the basis that it unduly limits or negates a collective agreement right of complainants. As employer counsel correctly pointed out, the only provision the Association pointed to in this regard is Article 18.8.1(g). The employer has taken the position that for these complainants, Article 18.8.1(g) does not provide the necessary link or hook to the collective agreement, so as to bestow jurisdiction on the Board to embark on the inquiry. That argument is premised on its position that Article 18.8.1(g) has application only in cases of existing positions being newly reclassified, and not in cases where positions are newly created. It is submitted that what occurred here was not the reclassification of the FMC positions. Instead, new RPBA positions were created and an appropriate classification was assigned to it. In those circumstances, Article 18.8.1(g) has no application.

15There is no question that Article 18.8.1(g) has no application to positions newly created. However, there is a clear dispute between the parties whether or not the RPBA positions are in fact new positions, or whether they are substantially the same as the former FMC positions, albeit differently titled and classified. Is the fact that the employer asserts that the RPBA positions were “newly created” determinative? The answer is “no”. Particularly in the circumstances of this case where potentially the employment of seven individuals is at stake, it is not reasonable or appropriate for the Board to accept that the positions in question are newly created positions merely because the employer treats them as such. A central position advanced by the Association is to the effect that the RPBA positions are not new positions, but substantially the same FMC positions, retitled and classified differently. Whether or not the exception to the posting requirement in Article 18.8.1(g) applies depends on whether on an objective view of the facts the RPBA positions are newly created positions as the employer asserts, or whether they are the same as the FMC positions, as the Association submits. While the employer clearly has the right to eliminate positions and replace them with new positions, whether it has actually done so must be based on a reasonable view of the objective facts. A position cannot be accepted as “new” merely because the employer elects to call it as such, and may even honestly believe it to be so. The Association has taken the position that the two positions, based on the duties and responsibilities of the incumbents, are substantially the same, and that what occurred was a mere change of title and classification. If the employer is correct that the RPBA positions are newly created based on the objective facts, Article 18.8.1(g) would have no application and the Board would be without jurisdiction. However, if the Association is able to satisfy the Board that the RPBA positions, although treated by the Employer as newly created, are in fact substantially the same as the FMC positions held by the complainants, it would be able to rely on Article 18.8.1(g) to argue that what in fact occurred was a reclassification of the existing FMC positions, and that therefore the complainants, as the incumbents, are entitled to retain their positions.

16In summary, in order to uphold the motion, the Board would be required to accept the employer’s position that the RPBA positions are newly created positions merely because the employer believes them to be so. The Board would then have to deny the Association the opportunity to demonstrate that based on a reasonable view of the objective facts, the positions are in fact substantially the same, although differently titled and classified.

17Having considered the submissions of the parties, the Board concludes that it is faced with a situation where the entitlement of the complainants to an exception from the requirement to compete depends on an issue over which the parties have clearly joined issue. In the Board’s view, it is not appropriate to accept the positions as new, merely because the employer asserts and believes them to be so. The Association must be afforded the opportunity as it seeks to do, to establish, that when the facts are viewed objectively and reasonably what in fact occurred was a mere retitling of the FMC positions the complainants held, and that the complainants are therefore entitled to the benefit of Article 18.8.1 (g). The fact that this may entail a comparison of the duties and responsibilities of the two positions, in the same manner as would occur in determination of a classification grievance, does not deprive the Board of jurisdiction. The Board is entitled to make the inquiry necessary to determine whether or not the complainants have the right they assert under Article 18.8.1(g).

18It follows from the foregoing that the employer’s motion fails and is hereby denied.

REQUEST FOR PRE-HEARING PRODUCTION ORDER

19Also dealt with at the hearing on January 12, 2010 was a request by the Association for an order for production which was opposed by the Employer and the interveners. The request was for the production of:

(a) All work related e-mails including attachments, sent and received by each person who performed in the RPBA position, including those who may have acted in the position.

(b) All work related calendars of persons referred to in (a) above, meaning documents that show their work schedules, meetings and appointments.

20The Association sought the production of the above described material for the period commencing the date of the first appointment to the RPBA position up to October 31, 2011. Noting that the next scheduled hearing date was April 5, 2012, counsel for the Association requested that the Employer be ordered to complete the production no later than February 15, 2012. Counsel argued that at least that period of time was necessary for the Association to review the material produced in preparation for the April 5, 2012 hearing.

21Counsel for the Employer submitted that while the Board has discretion under s. 48(12)(b) of the Labour Relations Act to order pre-hearing production, the Board must balance the competing interests of the parties in exercising that discretion. Reference was made to para. 7 of the recent decision of the Board in Re: Bokhari, 2010-2873, 2010-2933 (Dissanayake), where the Board stated that it must balance the potential prejudice to the responding party if production is ordered on the one hand, and the probative value and need for the requesting party to have access to the material in order to be able to adequately present its case, on the other.

22Counsel submitted that the requested material is at best of marginal probative value. On the other hand, the requested order, if granted, would potentially be highly prejudicial to the Employer as well as the incumbents. There could be confidential information such as business information, information relating to bids and court floor plans and even labour relations information. The employer would have to sort through material covering six employees over a period in excess of six months to identify personal and confidential information. That would require significant effort involving much time and costs.

23Counsel submitted that the stated purpose for requesting the production is to establish what work the incumbents of the RPBA positions actually performed. It was argued that it was open for the Association to establish those facts by calling the incumbents to testify.

24Counsel relied on the following observation in Re: Koonings, 2003-31-1 (Gray) at para. 26:

An allegation of “bad faith” or the like by a union would be made in relation to management’s having taken or failed to take some particular action for legally improper motives. Before production of documents could be sensibly addressed in such a case, either by the employer or by an arbitrator, particulars of the acts or omissions complained of would be needed, from which it would become apparent which individual’s (or individuals’) motivation was in issue and during what time frame. It is not at all obvious that allegations of bad faith and the like of necessity make an obligation to produce arguably relevant documents limitless. In addition, it is hardly an objection to the doing of justice that its requirements may be burdensome.

The Board was advised that while the Association had undertaken to provide particulars of its bad faith allegation, it had not done so to date. It was argued that in the circumstances the requested order should be denied.

25The employer further argued that the Board should also consider the fact that all of the material requested post-date the employer’s decisions, which the Association claims to be tainted by bad faith. That material, therefore, could not possibly be relevant to the Employer’s motivation at the time the decisions were made.

26Counsel in the alternative submitted that if the Board was inclined to grant the order for production, its scope should be more reasonable than that requested. Counsel suggested that the order should be limited to the period from September 1 to October 31, 2011. That, according to counsel, would be a more reasonable balancing of the interests of the parties.

27Counsel also submitted that considering the volume of work that may be required, it was not feasible to complete production by February 15, 2012, even if the Board’s order is issued as early as January 20, 2012. Counsel suggested a time line of March 15, noting that the Association still would have approximately 3 weeks to review the material prior to the next scheduled hearing date.

28Arbitrators have recognized that labour relations policy considerations favour liberal pre-hearing disclosure. Thus in Re: West Park Hospital, (1993) 37 L.A.C. (4th) (Knopf) 160 at p. 167 in reaching that conclusion the arbitrator wrote:

In coming to the conclusion, several factors have been taken into account. Let us start with the principle that labour arbitration is effective in providing a speedy and efficient resolution for the parties of important issues in a forum they can control and which they have designed. Boards of arbitration exist to assist the parties. The decision evolves from the concepts which are intended to foster fairness, harmony and sensible labour relations. Anything which can assist in the preparation of cases, the refining of issues or which will facilitate settlement should be encouraged. As a general proposition, pre-hearing disclosure will assist with all these matters and should occur wherever possible. Indeed, parties do as a matter of course provide pre-hearing disclosure to each other for these very reasons.

29This Board in Re: Koonings, (supra) at para. 14-15 wrote as follows:

14Subsection 48(12) of the LRA does not oblige parties to make pre-hearing disclosure of documents in the absence of an order, as parties to civil litigation are obliged to do as a matter of course under the rules of civil procedure. In that respect employer counsel is correct that there is no equivalent of that obligation in labour arbitration proceedings. I do not agree, however, that an arbitrator’s imposing such an obligation, at an appropriate stage and in an appropriate manner, is somehow inimical to the purposes of labour arbitration or to the interests of good labour relations generally.

15Good labour relations require that the process for resolving rights disputes at arbitration be both expeditious and fair. Full pre-hearing disclosure of all arguably relevant documents advances that interest. In that regard I adopt the observations of arbitrator Germaine in British Columbia v. British Columbia Government Service Employees’ Union, [2003] B.C.C.A.A.A. No. 150 at paragraph 48:

48 Prehearing production of relevant documents is consistent with the right of parties to a fair hearing and the process values of expedition and cost saving: Pacific Press Limited and the Newspaper Guild, Vancouver-New Westminister Guild, Local 115, (1983) 2 CLRBR (NS) 277 (BCLRB Decision No. 109/83). Fairness is advanced by assisting the parties to know and prepare for the case they must meet, and by avoiding surprise at the hearing. Expedition and economy are served by minimizing the adjournments necessitated by unanticipated evidence at the hearing. These considerations, combined with the absence of any structured procedure in labour arbitration, recently persuaded a prominent arbitrator to take “a liberal view…with respect to the production of documents”: Toronto District School Board and CUPE, Local 4400 (2002), 2002 CanLII 79047 (ON LA), 109 LAC (4th) 20 (Shime), at page 31. The same considerations have been recognized specifically in relation to pre-hearing production of medical documents containing personal and private information: West Park Hospital and ONA (1993), 1993 CanLII 16806 (ON LA), 37 LAC (4th) 160 (Knopf, at page 167; Stelco and U.S.W.A., Local 1005 (1994), 1994 CanLII 18600 (ON LA), 42, L.A.C. (4th) 270 (Dissanayake), at page 274.

That fairness favours full production is underscored by the decision of the Court of Appeal in Ontario (Liquor Control Board) v. Lifford Wine Agencies, supra, which held that the AGCO’s failure to compel production of documents at the request of a party to the proceedings (in that case by refusing to issue or enforce a summons duces tecum to a third party) amounted to a denial of justice.

30However, these policy considerations have not led arbitrators to order any and all production requested by a party. Certain criteria have been developed in the jurisprudence that are considered in the exercise of the discretion to order production. These are summarized in the often cited passage in Re: West Park Hospital, (supra) at p. 167 as follows:

However, where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the board of arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the board should be satisfied that the disclosure will not cause undue prejudice.

While pre-hearing production of documents may lead to a certain amount of “discovery”, that should not deter arbitrators from ordering production of documents that are arguably relevant to the matters in dispute. Re Mallenhauer LTD. (1987) O.L.R.B. Rep. Sept. 1156, at 1159 and Re F.W. Fearman Co., (1990) 1990 CanLII 12759 (ON LA), 15 L.A.C. (4th) 294 (Marcotte).

31In relation to the fourth criterion set out in Re West Park Hospital (supra), I agree with the observation by Vice-Chair Gray in Re: Koonings (supra) at para. 19 that the “clear nexus” test does not add anything to the “arguably relevant” test. In the instant matter, the Association has advanced three arguments in support of the complaints (see the Board decision dated December 6, 2011), only one of which is based on an allegation of bad faith on the part of the Employer. It is very clear that central to all of the arguments of the Association is its assertion that the FMC position which the complainants had held and from which they were surplussed, and the RPBA positions which the Employer claims to be newly created, were in fact substantially the same. The Employer did not dispute that the material sought would tend to disclose the actual duties performed by the RPBA incumbents. Its position was that the production requested was too cumbersome and expansive and that the Association could obtain the same information by calling the RPBA incumbents to testify.

32The Board is convinced that the production sought is arguably relevant to a central issue in this proceeding, namely, whether or not the RPBA positions are new positions. The issue for the Board to determine is whether there are countervailing considerations which should cause it to deny the production of this arguably relevant information.

33The fact that the Association has not particularized its bad faith allegations in the Board’s view is irrelevant. In Re Koonings (supra), at para. 28, the Board wrote:

Although I do not accept that particularization by the requesting party is a prerequisite to production independent of the implications of the “arguably relevant” test, I do agree that when framing an obligation to produce documents other than those relied upon by the producing party it is desirable that the scope of the obligation be made as clear as possible.

There is no suggestion that the scope of the production requested in the present case is not sufficiently clear. The particulars which are missing presently have to do with the “who”, “what” and “when” of acts or omissions the Association asserts, that would amount to bad faith. It has nothing to do with the relevance of the disclosure to the factual assertion by the Association that the two positions are substantially the same. The absence of particulars relating to the bad faith allegation does not preclude or even hinder the determination of whether the production requested is arguably relevant to the Association’s “same position” theory.

34In the Board’s opinion, the ability of the Association to call the RPBA incumbents to testify about their duties and responsibilities is not a reasonable alternative so as to cause the Board to deny production which is otherwise arguably relevant. This is more so in the present case, where the RPBA incumbents have clearly placed themselves in a position adverse to the interest advanced by the Association, and where success of the Association’s complaints may potentially impact adversely on them.

35The potential prejudice that may result to the responding party is a valid consideration in the exercise of the Board’s discretion under s. 48 (12)(b) of the Labour Relations Act. One potential prejudice asserted by the Employer is the concern that the material sought by the Association may contain confidential information. While the Board has recognized the importance of protecting confidential information that may be contained in the material sought, it has not denied production on that basis alone. In Re Koonings (supra) at para. 16, the Board wrote:

In that regard I remain of the view that any party who seeks an order for pre-hearing production impliedly undertakes not to make use of the information thus obtained except for the purposes of the proceeding in which the order was made: Re Thermal Ceramics, Division of Morganite Canada Corp. and United Steelworkers (1993), 1993 CanLII 16811 (ON LA), 32 L.A.C. (4th) 375 (Gray) at p.383. If in any case there is any doubt that such an undertaking is implied, then that limitation should be made express in the order for production.

36In the present case there is no necessity to imply an undertaking. Counsel for the Association explicitly not only made that undertaking, but also agreed that if the Employer so wishes, it could redact any confidential information contained in the material produced. Given that undertaking, the mere possibility that the material sought may contain confidential information is not a basis to deny production.

37In Re Bokhari, (supra), the Board was faced with a similar objection to production of arguably relevant material on the basis, inter alia, of confidentiality and privilege. At para. 9 the Board wrote:

I find that the material listed in the Association’s request for disclosure, (item 9 having been withdrawn) is arguably relevant to the issues raised in the grievances. If the employer objects to the disclosure of a particular document on specific grounds, it may be raised. Then the Board would be required to engage in the balancing exercise – for example the relative value of the material to the Association in preparing its case compared to the effort and cost to the employer – or to decide upon any legal impediment to the production of the material in question such as privilege or confidentiality. Employer counsel asserted that compliance with the Association’s request may result in disclosure of privileged documents. If and when an objection is made to the disclosure of a particular document or documents, the Board would be required to decide whether those documents ought to be disclosed, and if so, whether such disclosure should be made subject to conditions. In the absence of objection to any specific documents, and having regard to my finding that the material requested is arguably relevant to the issues raised by the grievances, the employer is hereby ordered to comply with the Association’s request for disclosure.

That, in the Board’s view, is the appropriate approach where there is concern that the material subject to production may include sensitive or confidential information. It is not appropriate to altogether deny production of otherwise arguably relevant material, merely because of the possibility that the material sought may include confidential or privileged information.

38Mr. Novak, on behalf of the intervening third parties, additionally submitted that the requested production order should be denied because it amounts to a “fishing expedition” on the part of the Association. In Re Koonings, (supra) at para. 20, the Board described a “fishing expedition” in the context of a production request as follows:

A “fishing expedition” is said to be an endeavour “not to obtain evidence to support [a] case, but to discover whether [one] has a case at all”: Canada Post, supra, at 57 L.A.C. (3d) 159. If one can have production only of documents arguably relevant to allegations of fact already put in issue in the case at hand, it follows that there cannot be production in aid of discovering a case not already asserted.

39In the present case the Association’s production request cannot be reasonably seen as fitting that description. It has clearly made an assertion as a central part of its case that the former FMC positions and the new RPBA positions are in fact substantially the same. The production is sought to support that assertion already made.

40For the foregoing reason, the Board concludes that the material sought is arguably relevant to an issue between the parties, and as such, production ought to be ordered.

41That leaves for consideration the Employer’s alternate submissions with respect to the scope of the production and the timing of production. In determining the appropriate scope of production, the Board must balance the effort and costs that may be incurred by the Employer, and the importance of the material to the Association in supporting its case, keeping in mind that the complaints are about the potential loss of employment of the complainants. The production should cover a reasonable period which serves the purpose for which it is sought, ie. to demonstrate the nature of the duties and responsibilities of the RPBA position. Similarly with regard to the timing of production the Employer should be afforded a reasonable period to gather the required information. On the other hand, the timing of the production should be such that the Association has a reasonable opportunity to review and assess the material in preparation of its case. With those considerations in mind, the Board orders as follows:

(a) The production shall cover the period August 1, 2011 to October 31, 2011. It is possible that the incumbents assuming new positions may not have performed the full range of duties immediately upon starting in March or April. It is the Board’s view that a period of three months starting in August 2011, would provide a fair and reasonable reflection of the duties and responsibilities performed by the incumbents, and that the effort and costs required would not be unduly onerous on the employer in the particular circumstances.

(b) While there is no evidence as to the exact degree of effort and time the Employer may be required to invest in order to gather the material to be produced, having regard to the nature of the material involved and the need for the employer to review and identify potentially sensitive and confidential information, the Board orders that the production herein ordered should be completed by the Employer on or before March 15, 2012. If this does not afford the Association sufficient time to prepare for the scheduled hearing on April 5, 2012, it may have to consider requesting an adjournment.

42The Employer is directed to produce the material sought by the Association in accordance with the terms set out herein. The Board remains seized with the instant complaints.