GSB#2014-2263
UNION#2014-0999-0109
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)
Union
- and -
The Crown in Right of Ontario (Ministry of Government Services)
Employer
BEFORE
Felicity D. Briggs
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel
FOR THE EMPLOYER
Robert Fredericks Ministry of Government Services Legal Services Branch Counsel
HEARING
August 8, 2014
Decision
1The Union filed a grievance on July 24, 2014 which stated:
The Union grieves the Employer has violated the OPS Collective Agreement including but not limited to Article 2, Appendices 9, 14, 18, & 38 in asserting Schedule “D” of Appendix 18 applies to its RFP for Desktop & Field Services Infrastructure Technology Services.
2Amongst the remedies requested is an order “to remove the transfer from Schedule D”.
3On January 10, 2014 the Employer wrote to the MERC Co-Chair and stated the following:
I am writing on behalf of the Ministry of Government Services (MGS) to provide you with information regarding the continuing service delivery organizational initiatives taking place in infrastructure Technology Services (ITS) Division, Ministry of Government Services, within the information and information Technology (I&IT) Organization.
As previously communicated on March 4, 2013, the information and Information Technology (I&IT) Organization has been assessing opportunities to deliver greater efficiency and better client value across the ITS service delivery chain. I&IT has conducted extensive research and developed a strategic approach. The following initiatives will be underway in 2014 to improve organizational efficiencies and I&IT client services:
Data Centre Operations will continue to migrate business applications to infrastructure at the Guelph or Kingston data centres or third party hosting services.
The Guelph Data Centre is projected to further leverage use by Broader Public Sector government organizations.
The ITS organization structure is under review with the aim of further creating more efficient and effective client service delivery.
ITS is examining specific services they provide OPS-wide and the branches that support these services. These branches include but are not limited to; I&IT Desktop / Field Services, Telecommunications, Service Management, Corporate Services, Infrastructure Project Delivery, Customer Relationship Management, Enterprise Planning and Design and Data Centre Operations.
Although the specific outcome of the initiatives are not known at this time, it is anticipated that the above initiatives will have impacts on OPSEU represented employees across ITS. Impacts might include, but not limited to, staff reductions, relocations, and reporting relationship changes. Once specific impacts are determined, the employer will ensure that OPSEU and staff are notified in accordance with the OPS Confidential Disclosure to Bargaining Agents Directive.
4A further letter was sent on July 18, 2014, this time addressed to the President of the Union. It said:
I am writing on behalf of the Ministry of Government Services to provide confidential disclosure regarding the upcoming surplussing of OPSEU-represented positions in the Desktop Services and Field Services Branch, Infrastructure Technology Services (ITS), as a result of a Request for Proposal.
As previously communicated on January 10, 2014 the IT Rationalization initiative is continuing to consolidate and streamline its services for greater efficiency and better client value across the ITS service delivery chain including an investigation of alternate service delivery options.
Currently, the Ontario Public Sector (OPS) has a contract referred to as “Desktop Managed Services and Products (DMSP2)” with two (2) vendors who provide I&IT products, image management, asset tag and configuration, hardware installation and removal services and warranty support. The current DMSP2 contract is a five (5) year Agreement expiring on May 7, 2015. The replacement Request for Proposal (RFP) referred to as “DMSP3” will be a multi-year strategy that will extend and expand on “DMSP2” to seek efficiency and value for services rendered through suppliers for OPS desktop managed services and products. Through the new “DMSP3” contract, the OPS will be increasing responsibility to vendors for renewal and deployment services.
The Ministry will be issuing a Request for Proposal (RFP) to external service providers to take on the functions currently provided by some OPSEU represented staff. The RFP will be issued on September 15, 2014.
As a result, some OPSEU employees who currently support these functions in Field Services will be impacted in the spring of 2015. Although not all of the specific details are known at this time, the Employer takes the position that Reasonable Efforts implications would fall under Schedule D of Appendix 18 as the Ministry has identified that there will be less than eleven (11) positions created in any one municipality by the receiving organization as a result of the RFP. We will continue to communicate with more detailed information once it becomes known.
We will be making an announcement to employees on September 3, 2014, advising them of the status of this initiative. For your reference I have included the organizational charts for the affected areas in Appendix B.
This information is being provided to you confidentially and I request that it not be shared with staff, members of the public, the media or any other persons except for the purpose of consulting internally on the matter prior to the announcement to staff.
5The Union filed its grievance and referred it to the Board on July 24, 2014. It disagrees that this dispute is properly characterized as a Schedule D matter.
6The relevant provisions of the Collective Agreement are:
Appendix 18 – Memorandum of Settlement
.0 Definitions (In this Agreement)
Employer – The Employer is the Crown in Right of Ontario
Receiving Employer – Any public or private sector Employer who has been designated in legislation or who is selected in another manner by the Crown to deliver services which were formerly delivered by Regular Employees.
Employee – Regular employees (in the Regular Service).
Transfer Agreement - an agreement or appendix of an agreement regarding human resource matters between the Crown in Right of Ontario and a Receiving Employer for a Schedule B transfer.
1.1 Scope
1.1.1 Any transfer agreements signed between the employer and a receiving employer and any agreements signed between OPSEU and the employer regarding specific transfers on or before the date of this Agreement shall remain binding and effective. Nothing in this Agreement shall be taken to amend such agreements. This Agreement is effective the date of signing.
1.1.2 This Agreement represents a full and complete interpretation of all matters arising under paragraphs 1, 4, and 5 of Appendix 9. All rights and obligations contained in paragraphs 1, 4, and 5 of Appendix 9 are governed by the provisions of this Agreement. Unresolved grievances filed before the signing date of this agreement will be resolved utilizing the dispute resolution process in Article 4.2 or Article 8 as appropriate.
1.1.3 All future grievances related to paragraphs 1, 4 and 5 of Appendix 9 – Employment Stability, must be filed under a specific article(s) of this agreement. Such disputes shall be subject to the dispute resolution process in Article 4.2 or in the situation of an Agreement and RFP Review – Article 8.
4.2 Dispute Resolution Process
The parties agree that disputes that arise regarding the interpretation or application of this agreement that are unresolved in accordance with Article 22.2.1 will proceed as follows:
(a) The parties agree to waive the Formal Resolution Stage of the grievance process.
(b) The union agrees to assign one (1) member of the M.E.R.C. as a Dispute Resolution representative to deal with grievances under this agreement. The Employer shall also assign a management employee to deal with grievances under this agreement.
(c) The grievor/union and the employer must set out all particulars related to the grievance in writing and provide to the identified Dispute Resolution Representative within seven (7) calendar days of the filing of the grievance.
(d) The representatives agree to meet with the affected parties within seven (7) calendar days of receipt of the written details of the grievance.
(e) If a meeting fails to produce a resolution to the grievance, satisfactory to all involved parties, the complainant has seven (7) calendar days to request mediation-arbitration and advise the other party.
5.0 – Schedule A – Transfers through Tendering (Service Transfers)
6.0 - Schedule B Transfers – Negotiated Transfers
6C.0 – Schedule C Transfers through Tendering (Service Restructuring)
7.0 – Schedule D Transfers (Transfers not included in A, B and C)
7.1 In respect to all other dispositions or transfers of bargaining unit jobs or functions involving transfers not included in Schedule A, B, and C, occurring during the term of this Agreement, affected employees will be surplussed as a result of the transfer or disposition subject to the terms of the collective agreement. The date of the issuance of the surplus notice will be determined by the Employer.
7.2 The parties agree that the Employer’s compliance with the provisions of Article 7.0 meets all obligations under Appendix 9 paragraphs 1, 4 and 5 for the transfers not listed in Schedule A, B or C.
8.0 – Agreement and RFP Review
8.1 All disputes arising out of Article 5.0, 6.0 or 6.c must be determined pursuant to Article 8.0. any other grievances under this agreement will go through the dispute resolution process in Article 4.2.
8.2 When the Employer releases a tender under schedule A or C, the Employer agrees that OPSEU will be provided with a copy of the RFP that the Ministry has released. If OPSEU believes that the tender is not in compliance with either Article 5.0 or Article 6C.0 as appropriate, OPSEU may refer the matter to mediation/arbitration and the matter must be resolved fifteen (15) days prior to the closing of the tender.
8.3 When the employer signs a transfer agreement with a hospital, municipality or other employer in respect to transfers under Schedule B, the employer agrees that OPSEU will be provided with a copy of the transfer agreement that the employer has signed with the municipality, hospital or other receiving employer. If OPSEU believes that the transfer agreement is not in compliance with Article 6.0, OPSEU may refer the matter to mediation/arbitration within a seven (7) calendar day time period and the matter must be resolved within that time period.
8.4 Arbitration – Placement of a transfer on a schedule
8.4.1 The parties agree that the determination of the method and/or manner and the quantity and timing of the transfer of any service to a service provider other than the Crown is at the discretion of the Employer and shall be deemed to be in accordance with Article 2.1 of the Collective Agreement.
8.4.2 The parties agree that before the Employer places a transfer on Schedule D (Other Transfers), it will notify the Union of its intentions. If OPSEU disputes the placement of the transfer on schedule D, then the following procedure shall apply:
(i) OPSEU will have seven (7) calendar days after being notified to grieve and fully resolve the placement of the transfer on Schedule D (Other Transfers);
(ii) The sole criterion for placing a transfer of a function or work, from a specific program area, in Schedule D is whether, in the judgment of the Ministry based on operational needs, a single receiving employer would create less than eleven (11) full-time bargaining unit related jobs. The jobs must be created in the single receiving employer’s workplace, as a result of the transfer of the function or work, in the thirty (30) calendar day time period immediately following the transfer of the work. All of a receiving employer’s worksites within a single municipality shall be considered one workplace in Article 8.4.2ii.
(iii) Where it is determined that the transfer should not have been placed on Schedule D, the employer can only be required to remove the transfers from Schedule D. The determination of which of the schedules (A, B, or C) the transfer will be moved to, will be made in accordance with paragraphs 8.4.1.
9.0 – Remedy
The parties agree that in the event of an alleged violation of this agreement that the issue(s) in dispute shall be resolved through binding arbitration as defined elsewhere in this agreement. The parties agree that Arbitrator(s) deciding grievances relating to paragraphs 1, 4 and 5 of Appendix 9 filed prior to this agreement should consider in addition to any other considerations, the interpretation of the employer’s obligations under paragraphs 1, 4 and 5 Appendix 9 provided by this agreement.
7As is apparent from the foregoing, the Employer intends to issue an RFP for the work presently performed by certain OPS employees.
8The Treasury Board Secretariat employs two classifications of employees in the Desktop and Field Service Branch of the Infrastructure Technology Services Division, Infrastructure Technology Support Officers and Local Systems Officers. Both are classified at the SO3 level and perform virtually identical work.
9The SO3s provide onsite and remote hardware and software assistance to IT users across all ministries in the Province. They undertake a variety of duties including installation and deployment of computers and related equipment, trouble shooting and applications. There are also two outside vendors who perform some of this work.
10Across the OPS desktop computers are replaced every four years, laptops are replaced every three years and computer monitors are replaced every six years. Presently, when it is time to update this equipment, the two outside vendors deliver the hardware to the workplace and install it together with some of the SO3s who assist in the process. The contracts with these outside vendors will expire in May of 2015.
11It is the intention of the government to issue one RFP for all of this work including that presently being performed by SO3s regarding the installation and deployment of equipment. The successful bidder will be expected to manage all aspects of the deployment and order processing of new equipment.
12It was the Employer’s view that these deployment duties represent a small portion of the work of the SO3s and accordingly it is appropriate to consider the transfer of this work as Schedule D. The Employer asserted that there will be no instance where the total number of jobs that need to be created as the result of this RFP in any one workplace will exceed ten.
13The Union disagreed and contended that if all of the work done by the SO3s and the related bargaining unit jobs needed to support that work is examined – which is difficult given that some of the Union’s request for disclosure was not produced – more than ten employees in each of the municipalities will be affected. In the alternative, when you examine the data provided by the Employer, there will certainly be more than ten employees affected in Toronto and therefore the work going to Toronto should be removed from Schedule D.
14Notwithstanding the dispute regarding who bears the onus in this matter, the parties agreed – without prejudice – that the Employer would proceed first. One witness was called, Brian Combe, Manager of Field Services. Approximately 175 staff, including 11 non-bargaining unit employees and all of the SO3s who are located in twenty five cities report to Mr. Combe.
15Mr. Combe reviewed the duties the responsibilities of the SO3. He stated that the work at issue takes only a small percentage of the time of this classification. The installation and deployment duties are best set out at paragraph 6 of the Infrastructure Technology Support Officer job description. It states:
Accepting work orders from Order Management related to the installation and removal of desktop equipment. Reinstalling standard images and certified applications on end-user machines. Coordinating the delivery of desktops to designated location, as well as any desktop reallocations as ordered. Participating in the rollout of multiple desktops within a refresh or large new installation project. Coordinating delivery and installation of equipment with external service providers. Assisting with desk top move projects, and ensures that locations are accurately recorded in the Asset Management Database. Assisting clients to locate assets and complete refresh documentation.
16According to the disclosure provided to the Union and the evidence of Mr. Combe, the difference between the current two outside vendor contracts and the new RFP is that the following functions will be altered:
DSFS resource connects with on-site client prime, establishes point of contact and oversees renewal on-site;
DSFS resource adds software entitlements and installs any manual applications and conducts QA check with client
Vendor schedules techs to return on-site to conduct hard drive wipes (certificate) of old computers for courier to pick-up and return to Surplus Asset Management for e-waste.
DSFS resource updates On-Site Daily Report of renewals completed
17Those functions will be altered as follows:
Automating computer staging at the configuration centre by customizing computers for end-user, requiring less effort on-site to install and configure applications
Just in time removals allowing for the vendor removal service to occur at the same time as the installation reducing the requirement for a second on-site visit.
18A deployment work effort analysis was conducted by the Employer between December of 2012 and August of 2013. A summary of that data revealed:
Field Service FTE (full time equivalents) 152
Deployment Teams FTE 11
Total FTE Count 163
FS Work Effort Breakdown of 152 FTE
60.8% - incidents
9.5% - Deployments (*)
7.3% - Projects
.2% - MACs
22.2% - Administrative
Analysis
9.5% of FS 152 FTE conducting deployments 14.4
100% of Deployment Team FTE 11.0
Total FTE count for deployments 25.4
Total Work Effort (25.4 / 163 = 15.58%
Based on the data analysis, the Toronto municipality may have up to 10 FTE impacts (67 FTE count * 15.58% work effort = 10FTE
19At the time the study was being conducted there were eleven SO3s assigned exclusively to perform the deployment work. Currently that is not the case. None of the current SO3s are dedicated to deployment work. Each has varied assignments that include the deploying of equipment. A weighted average of deployment work during and post study reveals that 15.58% of the work is deployment related according to Mr. Combe. It is thought that twelve of the twenty-three municipalities will be impacted. All but Toronto will have only one or two SO3s positions affected. As can be seen by the chart above, it is anticipated that Toronto may have ten, although Mr. Combe is of the view that this number will be less because of the efficiencies that the new single vendor will experience. Those efficiencies would include loading applications onto new computers at its own worksite rather than in various government offices. This would allow for the entire installation in one session and would also allow for the removal and wiping clean old equipment in that visit eliminating the need for a return visit. Presently it is the norm for the outside vendor personnel to have to attend at one workplace twice.
20Mr. Combe stated that when he speaks of ten jobs for Toronto he is speaking of the equivalent number of people doing the work in the OPS. He thought that a vendor will need less than that number – although he could not say how much less – due to the inefficiencies in the current process. When an outside vendor takes over the entire deployment process those inefficiencies will be eliminated and therefore less than ten jobs will need to be created. He also was of the view that a vendor will not have to hire any support staff because presently there is one administrative assistant for all 160 staff and that person’s job is not affected.
21In cross-examination Mr. Combe was asked about the number of vendor staff who have overlapping duties with the SO3s. He stated he did not know. Indeed, he did not know how many FTEs the new vendor will have in total. Therefore, those numbers were not considered in the analysis that was undertaken.
22Mr. Combe was also asked in cross-examination about bargaining unit related work such as payroll personnel, benefits and human resources people. He responded that these functions were not taken into account because any vendor who would be a successful bidder would already have people in those positions performing those functions. However, he conceded that no analysis of this work was done.
23In re-examination Mr. Combe noted that the overlapping duties performed by any new vendor are the same as those being done by outside vendors today and for this reason there was no analysis undertaken of that work.
EMPLOYER SUBMISSIONS
24Mr. Fredericks, for the Employer submitted that the language of 8.4.2 is crucial in this dispute. It states, “The sole criterion for placing a transfer of a function or work, from a specific program area, in Schedule D is whether, in the judgment of the Ministry based on operational needs, a single receiving employer would create less than eleven (11) full-time bargaining unit related jobs.” Further, those jobs must be created within the thirty-day period immediately following the transfer of the work. It is evident from the language that the parties agreed upon that this Board should consider the decision of the Employer with a highly deferential level of review.
25The word “created” is repeated and is of import. The evidence provided by Mr. Combe, according to the Employer is that at most the number of jobs that might be created for Toronto are ten – and he thinks it will be less because of the ability of a new vendor to significantly reduce inefficiencies. His view was uncontradicted.
26Appendix 18 flows from Appendix 9 which is the provision that requires the Employer to make reasonable effort to make sure that bargaining unit employees who are about to be affected from the transfer of work will be offered comparable positions with their new employer. There is one exception to that requirement and that is found at Article 7.1 of Appendix 18. It is the catchall provision stating that any transfer of work that does not fall into the category of Schedule A B or C, are put on Schedule D. there can be no doubt, submitted the Employer, that the work that will be transferred out in any one municipality is less than eleven and therefore, properly considered Schedule D.
27Mr. Fredericks urged the Board to reject the Union’s contention that it is proper to look at the total number of existing staff in all municipalities. Article 8.4.2 simply does not support such a view. Further, it is not about the total number of positions that might be affected but the number that will be created and there was no evidence that the number for Toronto will be greater than ten. Further, the Union’s assertion that support staff should be taken into account and once that is done the number of total positions will exceed ten is absurd. Mr. Combe’s evidence was that there is one support staff for a total staff of 160 employees and therefore it is highly unlikely that ten people would require one support person. This Board should only consider the body of work that is being transferred. The grievance should be denied.
UNION SUBMISSIONS
28Mr. Holmes, for the Union, reminded the Board that presently there are two vendors who provide work regarding deployment of equipment. In the future, there will only be one – a new entity – a single receiving employer. This Board must consider all of the deployment functions and how many full time bargaining unit jobs will be created by this new entity.
29The Union noted that the collective agreement contemplates the number of jobs which are to be created as the result of the transfer of the deployment work. The evidence was clear that a lot of people are going to be affected who are presently in the bargaining unit and also an unknown number of people engaged by the two vendors doing the same work. The Employer should have taken this into account in its considerations. Additionally the Employer should have considered the other bargaining unit people who support the SO3s. It did not and that error leaves this Board with no comfort that Schedule D is appropriate. When this Board considers all of the deployment function that will be taken over by new receiving employer the numbers will be significantly more than eleven.
30The Employer did not provide any disclosure regarding the amount of work presently done by the outside vendors and this is telling according to the Union.
31In the alternative Mr. Holmes argued that the municipality of Toronto will have 10.45 employees created and once the support staff needed is added the number will certainly exceed eleven.
32The Union asserted that in Re MCSS & OPSEU (Union) GSB#1785/98 (February 24, 1999) Vice Chair Brown accepted that the threshold of eleven must include the counting of support staff. In the case at hand, staff will be needed to support the SO3s work including coordinators and administrative staff and therefore the number of positions created will exceed ten.
33The Union also urged that this Board apply the same rationale as Vice Chair Brown that any analysis of Article 8.4.2(ii) should be strictly construed because it is a provision that goes to the heart of seniority rights. If the Union’s interpretation is plausible, it should be accepted. When putting seniority rights as a guiding force, Vice Chair Brown said, at page 12, “I read “jobs” to mean the number of full-time jobs required to do the work transferred, regardless of how much of that work initially is expected to be performed by the receiving employer’s existing workforce.”
34The Union said that the onus in this matter is on the Employer because it has all of the information. Further, according to Re OCWA & OPSEU (Union) GSB #263/98 (Abramsky), where the Employer is exercising discretion regarding operational requirements, the onus is on the employer. In the case at hand, it has not proven to this Board that Schedule D is appropriate.
EMPLOYER REPLY
35The Employer stated that it does not matter who will be the successful bidder in the RFP process. It is likely to be Vendor 1 or 2 according to Mr. Combe, but it is not a matter for this Board to take into account because this is about the amount of work that is to be transferred over from the OPS. Further, the amount of work cannot include coordinator positions because they are in a different bargaining unit and there is no way that one support or administrative staff’s work will be transferred. Therefore, much of the Union’s submission is of no use to this Board.
36There can be no dispute – and certainly the Union provided no evidence to challenge that the number of jobs that may be created in the municipality of Toronto is 10.45 and that number is less than eleven. Additionally, according to the Employer, it must be remembered that Mr. Combe’s uncontradicted evidence was that because of efficiencies that will be gained, it is more likely than not that the number will be less than ten.
37Mr. Fredericks stated that the Union put forward a hypothesis with not substantiating evidence. The grievance should be denied.
DECISION
38After considering the evidence and submissions of the parties, I am of the view that this grievance must be dismissed.
39There can be no question that the determination of which Schedule the transfer of work is placed upon is an important issue. This is particularly true with Schedule D because under this provision the Employer is not obliged to make any effort to obtain jobs for those employees who will be affected by the transfer.
40As noted in Ontario Public Service Employment & Labour Law (Hadwin, Strang, Marvy & Eady), at page 636 in a review of the case law to date:
There have been disputes about which schedule should govern a particular transfer.
Management positions do not count for the purposes of determining whether the threshold of eleven jobs was met for placement under Schedule D. The analysis should focus on the number of jobs required to perform the entire body of work that is transferred from the provincial government, rather than on the number of vacancies created as a result of the transfer of the body of work. ……
(emphasis mine).
41A review of the clear and credible evidence of Mr. Combe reveals that the Employer undertook a detailed analysis of the amount of work that would be transferred. This analysis revealed that at most, ten positions would be created in Toronto. I accept that analysis and therefore placement of this work on Schedule D is appropriate. I also believe that Mr. Combe is right that with the elimination of present inefficiencies the number will probably be less than ten in Toronto.
42The Union urged that Coordinators should be counted in this analysis. I think not. They are not bargaining unit positions according to Mr. Combe and therefore are not included. The Union also wanted other bargaining unit related positions to be considered. There was some issue between the parties as to whether Vice Chair Brown’s comments in Re MCSCS & OPSEU (Union) (supra) regarding related work were obiter. It is unnecessary for me to decide whether his comments were obiter because even if they were not, according to the evidence of Mr. Combe there is no bargaining unit related position that will be affected. He stated that there is only one administrative assistant in the department for 160 employees. Therefore the time needed to support the ten jobs is de minimus even if one accepts the Union’s view that we should take into account payroll and other human resource functions.
43Finally, the Union submitted that the amount of work that is presently being done by those working for Vendors 1 and 2 should be taken into account because it might be an entirely new Vendor who is the successful bidder to the RFP. Again, I must disagree. It is the body of work that is being transferred from the OPS and not the total amount of work from OPS employees and the vendor employees.
44Vice Chair Brown made a comment that seven days is an extremely short period of time for the parties to disclose and investigate important matters such as this. I agree. In this instance the parties agreed to extend the time limits, in part because the Employer could not even meet its disclosure obligations in the seven-day time frame. It would make labour relations sense for the parties to re-evaluate the amount of time needed for this process. I understand that the Employer wants to move fairly quickly with its RFP. However, seven days is – as we found in this instance – a stunningly short period of time for all that needs to be done.
45It does not appear that in Re MCSCS & OPSEU (Union) (supra), Vice Chair Brown had the benefit of sufficient viva voce and documentary evidence. It looks as if he was asked to interpret the Collective Agreement and was provided with some documents. My task was made easier because in the instant matter the Employer undertook a detailed analysis of the work and put Mr. Combe on the witness stand. He explained how the work is undertaken presently, who is doing that work and precisely what work is being transferred. That evidence was crucial to this decision.
46For those reasons, the grievance is dismissed.
Dated at Toronto, Ontario this 19th day of August 2014.