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HomeMy WebLinkAbout2012-2459.Union.14-03-28 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-2459, 2012-2460, 2012-2983 UNION# 12-116, 12-122, 12-137 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees - Local 1750 (Union) Union - and - The Crown in Right of Ontario (Workplace Safety and Insurance Board) Employer BEFORE Owen V. Gray Vice-Chair FOR THE UNION Emma Phillips Sack Goldblatt Mitchell LLP Counsel FOR THE EMPLOYER Michael Smyth Hicks Morley Hamilton Stewart Storie LLP Counsel HEARING April 8, 18 and 29, May 3 and 23, June 4, 12 and 25, July 16, August 28 and September 25, 2013. DECISION [1] On January 20, 2012, David Marshall, the President and CEO of the employer (the “WSIB”) made a presentation to all employees at a Town Hall meeting and discussed the major directions the WSIB would be taking over the next few years. In a follow-up email on January 31, 2012, Mr. Marshall referred to the 2012-2016 Strategic Plan that was posted on the WSIB’s website. Mr. Marshall advised employees that the new model involved clearer, simpler policies, defining expectations for stakeholders, more automation and much better service. He said that the WSIB would become a smaller, more focused organization. [2] In February, March, June, October and November, 2012, the employer gave notice to a number of employees of employees in the union’s bargaining unit that they would be laid off as of a future date, either because their positions were being eliminated or because they were being displaced from their positions by more senior employees. The union has grieved that the Employer breached its collective agreement obligations in the following respects: • It failed to give the union complete and timely notice of its intentions during its planning of organizational changes, as contemplated by Article 6.03(a) of the parties’ collective agreement (“the Article 6.03(a) notice issue”); • On one of the occasions when it purported to give the union the notice required by Article 6.03(c), its notice did not comply with the requirements of that article (“the Article 6.03(c) notice issue”); • It placed affected employees in jobs by way of “VE match” at salary levels lower than the affected employees’ current salary levels without the employees’ consent (“the VE match issue”); and, • It placed affected employees by having them “displace” less senior employees before the displacing employees’ notice periods had expired (“the early bump issue”). - 2 - [3] Early in the hearing the parties agreed that the remedy to be awarded if I determined that the employer acted improperly in any of these respects should be determined after a further hearing if the parties are unable to agree on it themselves. [4] For reasons that follow, I have concluded that the employer breached the collective agreement in the respects alleged. My conclusion with respect to the Article 6.03(c) issue is that the Article was breached on the occasion in question if and only if that Article requires that notice be given to the union prior to giving notice to employees being displaced by bumps, a matter about which the parties disagree and have asked that this decision express no conclusion. My conclusion with respect to the early bump issue is that while the language of the collective agreement does not preclude them, the employer is estopped from doing so for the life of the current collective agreement. [5] The evidence before me consists of a number of agreed facts, which the parties supplemented with oral testimony and documentary evidence during eight days of hearing. Questions about whether and to what extent the evidence could be relied on in interpreting the collective agreement provisions in issue were left to closing argument, which occupied two further days of hearing and part of a third. Union and employer counsel also provided very complete written summaries of their respective arguments in chief. [6] The union’s witnesses were Harry Goslin, Martim Gaspar and Cynthia Ireland. [7] Mr. Goslin first became involved in the union in 1996 as a front line local rep. He became a unit coordinator in 1998, an executive board member in 2000 and a Vice President in 2001. He became Organizational and Technological Change coordinator or committee chair in 2002. He testified that he has been President of the union since January 2004.1 He was involved in collective bargaining as lead negotiator for the union in the 2011 negotiations that led to the current collective agreement, as well as in collective bargaining in 2005 and 2008. He was also involved in collective bargaining about Article 6 – the Organizational and Technological change provision – in 2002. 1 see note 2. - 3 - [8] Martim Gaspar has worked for the WSIB for nearly 30 years. He has been a Vice-President of the union since 2004, and before that was part of the group that advised the Trustee when the union was under trusteeship. He was involved in collective bargaining in 2005, 2008 and 2011. [9] Cynthia Ireland has worked for the WSIB since 1988. She has been the union’s Vice-President for the Regions since November 2011. She was also member of the union’s bargaining team in 2011. [10] The employer’s witnesses were Paul Simourd, Steve Jackson and John Hill. [11] Mr. Simourd testified that he was President of the union from 1997 until 2004.2 Sometime thereafter he became employed by the WSIB outside the bargaining unit. He became Director of Labour Relations in May 2009, and remained in that position until October 2012. He was employer’s spokesperson in collective bargaining in 2011. He was in another position in HR at the time of his testimony. [12] Mr. Jackson was Vice-President of HR in the periods 2004 to 2008 and 2010 to 2013, and was in another senior management position when he testified. He held other HR positions prior to 2004. He was on the employer bargaining team in rounds of collective bargaining starting in the 1990’s, and was chief negotiator for the employer in 2005 and 2008. [13] Mr. Hill became the Chief Information Officer and a Vice-President of the WSIB in September 2011. He was the architect of changes made to the organization’s Business Technology Services (“BTS”) after he took charge of that area. Collective Agreement Provisions [14] The parties’ current collective agreement was concluded in June 2011. Its term is from April 1, 2011 to March 31, 2016. 2 During cross-examination of Mr. Simourd union counsel put to him, and he acknowledged, that the union was under trusteeship from November 2002 to “the end of 2004,” and that during that time all union officers were removed and served on a committee that advised the Trustee. - 4 - [15] Article 6.01 of the collective agreement defines “organizational/ technological change.” Article 6.02 imposes on the employer an obligation to minimize or eliminate the adverse effects of such change on employees and an obligation to negotiate (if asked) about additional provisions to assist affected employees. Article 6.03(a) requires that the employer give the union advance notice and information during the planning of organizational/technological change. Those provisions are as follows: ARTICLE 6 ORGANIZATIONAL/TECHNOLOGICAL CHANGE 6.01 Definition Organizational/technological change means the introduction of equipment, material, work functions, processes, methods, organization or geographic location that is significantly different from what is currently practiced. 6.02 Eliminate Adverse Effects The Employer will make every reasonable effort to minimize or eliminate adverse effects of organizational/technological changes on employees. At either party's request, the Union and the Employer will meet with the intent of reaching agreement in good faith regarding any special provisions that may be necessary to assist affected employees beyond those contained in the Collective Agreement. 6.03 Advance Notice and Information a) As soon as possible during the planning of Organizational/Technological changes, the Employer will discuss their intentions and the expected effects with the Union and will provide regular updates. … [16] Article 6.03(c) then imposes a further obligation to discuss organizational change with the union and provide certain information about its effect on employees at least 20 working days in advance of giving affected employees notice: 6.03 Advance Notice and Information … c) At least twenty (20) working days in advance of giving the employee(s) notice, the Employer and the Union will have meaningful discussion and the Employer will provide the Union Executive with written notice of: • the nature of the change, • date of change, • number of positions affected, • job titles affected, - 5 - • location(s), • name and seniority date of employees likely to be affected, • the expected effects on employees, • job descriptions and salary grades for all new or changed jobs. It is understood that this material is confidential and should not be publicly released without the consent of the employer. [17] Article 6.05 provides for the notice to employees to which Article 6.03(c) refers. The first two paragraphs of that article require that notice be given to employees whose jobs will be significantly changed or become redundant “before the change occurs.” Sub- section (a) speaks to the rights of employees whose job will significantly change, which are not in issue here. Sub-section (b) is entitled “Employee whose job has been declared redundant,” but says that all “employees deemed redundant” are entitled to notice “prior to layoff.” The parties’ Agreed Statement of Fact uses “notice of redundancy” and “notice of layoff” interchangeably to describe a notice given under article 6.05(b). In this decision employees who receive such notice are sometimes referred to as “affected employees.” [18] The pertinent provisions of Article 6.05 are as follows: 6.05 Notice to Affected Employees The Employer will advise in writing those employees affected by the change at least one hundred thirty (130) working days before the change occurs. Notices will be issued on the basis of lowest seniority. For the purposes of invoking an Article 6 notice of significant change or redundancy within the same job, unilingual and bilingual positions will be considered the same. Employees advised will be those whose permanent job will: i. be significantly changed, or ii. become redundant. (a) Employee Whose Job Has Significantly Changed … (b) Employee Whose Job Has Been Declared Redundant Redundancy can occur in 4 ways: 1. an employee is identified as the least senior employee as described in 6.05, 2. an employee accepts a significantly changed position and opts out during the sixty (60) working day trial period, or is unable to acquire the required skills through retraining, - 6 - 3. an employee declines a significantly changed position and their position does not exist elsewhere in their geographic location, 4. a position has been eliminated or reduced in number, within the organization. Prior to giving notice, where there is an incumbent with the same job, in the same geographic location on the Voluntary Exit list, that incumbent’s offer will be accepted, removing the need to give official notice to an employee. If no Voluntary Exit match is available, the Employer will give notice to the least senior incumbent of the same job in that geographic location and reassign the more senior employee to the position. All employees deemed redundant will be given, in writing: • at least 130 working days notice prior to layoff, and • an offer of Voluntary Exit, (may not be applicable to employees who decline a significantly changed job that is not fundamentally different) or • placement opportunities under Article 5 & 6 If the Employee does not accept the Voluntary Exit offer the Employer will, as opportunities arise prior to the 130th working day, select the most suitable of: 1. a Voluntary Exit match, or 2. a Priority placement match under Article 5.03, or 3. a displacement of a less senior bargaining unit member (bump). This decision will be made based on information available at the time. For ease of reference, the emphasized portion of this article is referred to in this decision as “the placement selection language.” [19] The opening words of Article 6.06 elaborate on the meaning of “most suitable” in the placement selection language: 6.06 Most Suitable Placement Criteria for determining most suitable option: i) Income preservation, ii) Same geographic location, and iii) Comparable knowledge, skills and abilities. [20] The “Voluntary Exit list” to which Article 6.05 refers is a list of positions occupied by employees who have made the offer to which the last paragraph of Article 6.15 refers. That paragraph says - 7 - ii. Voluntary Exit for non-affected Employees: An employee in a job not affected by an Organizational or Technological Change may volunteer their position to be considered for elimination or matched to employees in a different job who have received notice under Article 6. If the Employer accepts the offer they will receive a Voluntary Exit package … [21] The first of the three placement options identified in the placement selection language – a “Voluntary Exit match” or “VE match” – is placement in a position on the Voluntary Exit list as contemplated by Article 6.06(a): (a) If the most suitable match is a Voluntary Exit match, the following will apply; • Where the Employer identifies a suitable Voluntary Exit match, in the same grade and same location, the employee will be placed into that position • the employer will provide the exiting employee with written confirmation that their offer has been accepted • the employer confirms, in writing, placement in the new position with the affected employee Article 6.06(c) provides that an employee can request VE matching at lower salary grades: (c) After each posting, if there is no suitable match under 6.06(a) or (b), the employee is encouraged to request matching to posted vacancies or Voluntary Exits at, or no more than, two (2) salary grades lower in: • their own location, or • other geographic locations they are willing to consider. Article 6.15(c) sets out the consequences of refusing placement by way of VE match: (c) Refusal of Voluntary Exit Offer Where an employee refuses a Voluntary Exit match to their same salary grade at their current location, the employee will be deemed to have terminated their employment with the Employer. Where an employee has requested the opportunity for a Voluntary Exit match below their current salary grade, in the same location, then refuses the match, the employee will be deemed to have terminated their employment with the Employer. An employee retains their right to refuse a Voluntary Exit match outside their current geographic location. [22] The second of the three placement options identified in the placement selection provision – a “Priority placement match under Article 5.03” – is placement in a vacant position that the employer has decided to fill. Article 5.03 prescribes the order in which - 8 - employees will be considered for such vacancies. It says that those “[w]hose position is made redundant by organizational or other changes” have “Priority Placement” rights, and are given first consideration for vacancies (along with those requiring accommodation based on “medical documentation”). Those entitled to “second consideration” (sometimes referred to by witnesses as “secondary placement rights”) include those “affected by organizational or other changes (see Article 6) and placed, with Income Protection, into a job at a lower salary grade.” Article 5.03 reads as follows: 5.03 Order of Consideration for Vacancies First Consideration First consideration for filling any vacancy will be given to employees: • Who, based on medical documentation are afforded Special Placement rights because they are unable to perform their normal duties on a permanent basis or, • Whose position is made redundant by organizational or other changes and have Priority Placement rights (see Article 6), including those who have displaced a contract employee or, • Who have Priority Placement rights and are laid off and are exercising their right to recall (see Article 6.11) In order of seniority, employees will be offered placement into vacancies for which they have the comparable knowledge, skills and abilities (KSA), at or below their current salary grade or salary grade previously affected in, whichever is greater. The employer may perform a KSA gap analysis to identify training needs. Priority Placement employees will be afforded retraining and a work trial as noted in Article 6. … Second Consideration Second consideration for filling any vacancy will be given to employees who submit an application and have been: • affected by organizational or other changes (see Article 6) and placed, with Income Protection, into a job at a lower salary grade or, • afforded Special Placement rights and placed into a job at a lower salary grade for the duration of income protection noted in Article 6.08. In order of seniority, employees will be offered placement into vacancies for which they have the comparable knowledge, skills and abilities (KSA). Placement applies to posted vacant positions that are at the current salary grade or closer to their highest affected salary grade. The employer may perform a KSA gap analysis to identify training needs. - 9 - Employees affected by organizational or technological change who have Secondary Placement rights will be afforded retraining and a work trial as noted in Article 6.06(d) and 6.06(e). Special Placement employees with Secondary Placement rights will be afforded retraining in accordance with Article 6.06(d). Third Consideration Where the vacancy continues to exist, applicants will be considered in this order: i. permanent employees with seniority, then, ii. contract employees with one hundred and eighty (180) working days of continuous service or more, then, iii. contract employees with less than one hundred and eighty (180) working days of continuous service in the same job, then, iv. all other applicants. [23] Article 6.06(d) provides for up to 8 months’ training of an affected employee in a job in which he or she is placed by VE match or Priority Placement. [24] The third placement option identified in the placement selection provision is “displacement of a less senior bargaining unit member (bump).” In this decision that is referred to as “bump placement.” Article 6.07 elaborates on this option: 6.07 Displacement of Employee (Bump) a) If the most suitable option is to displace an employee with less seniority, the Employer will displace the least senior incumbent within the current geographic location in the following order: i. Another position for which the employee meets the minimum requirements, at their current salary grade. ii. A position previously held by the employee in which they performed satisfactorily. Where more than one position is suitable, the position closest to the employee’s current salary grade maximum will be given first consideration, or where more favourable to the employee, Another position for which the employee meets the minimum requirements below their current salary grade. Where more than one position is suitable, the position closest (at or below) the employee’s current salary grade maximum will be given first consideration. b) Where options 1 or 2 do not exist, the employer will, within the current geographic location, displace the least senior incumbent occupying any other position the employee is qualified to perform with minimal or no training. c) If no position is available in the employee’s current geographic location, and should the employee wish to relocate, the employer will consider the same - 10 - options as in 6.07 (a) (1) and (2) above in locations for which the employee has, in writing, expressed a preference. d) Minimum requirements refers to entry level skills required to perform the position being bumped into; • The employer will determine whether the impacted employee has met the “established” minimum requirements through a systematic review of the employee’s knowledge, skills and experience gained through WSIB employment along with any additional information provided by the affected employees. e) Minimal or no training may include either “classroom” or “on the job training” to meet the established job requirements as set out above under section (d); • The employer will give first consideration to positions the employee is able to perform with no training. Should training be required, it will be applied as follows: i. Up to 2 weeks for positions at or below salary grade 830 ii. Up to 4 weeks for positions at 835 and up to and including 855 iii. Up to 5 weeks for positions at or above salary grade 860 iv. Extensions may be considered as required. [25] I was told by counsel that the parties agree that the “less senior employee” to whom the bump placement option refers is also entitled to 130 working days’ notice and to consideration for VE matches, Priority Placements and bump placements. Against the possibility that it might provide some guidance on the “early bumps” issue, I asked whether the collective agreement contained an express provision to that effect, other than the phrase “All employees deemed redundant” and the three bullet points that follow it in Article 6.05(b). None was identified. During closing argument employer counsel argued that Article 6.03(c) does not apply to the giving of 130 days’ notice to an employee who is or will be displaced by an affected employee’s bump placement. Later, during the union’s reply argument, it withdrew that position on the basis that the issue would be dealt with between the parties without my deciding it. The union does not contend that “a displacement of a less senior bargaining unit member” must await the end of the notice period to which the displaced employee is entitled. Its uncontradicted position is that the displacing employee can be put in the less senior employee’s position before the less senior employee is removed from it. - 11 - [26] Article 6.08 provides some income protection for an affected employee who is placed in a job at a salary level lower than that of the position from which s/he would otherwise be laid off. Article 6.14 provides that “ If there is no opportunity to displace another employee in their own geographic location, and the employee declines/cannot displace another employee in an alternate geographic location, the employee will be laid off with recall rights.” Article 6.13 provides that a laid-off employee will be discharged if not recalled within a period equal to his or her seniority, to a maximum of 24 months. Article 6.11 provides that during such an employee’s recall period he or she will have Priority Placement rights and will be considered for appropriate Voluntary Exit matches as they arise. [27] With some other differences not material to the disputes addressed in this decision, the language of Article 6 to which I have referred first appeared in the parties’ collective agreement for the period April 1, 1999 to March 31, 2002, but with an 80 working day notice period. The length of that notice period was increased in subsequent collective agreements. In the last round of bargaining the notice period was increased from 120 to 130 working days. Preliminary Comments [28] Some of the parties’ agreed facts and testimony described what had happened in negotiations of the sort contemplated by Article 6.02, both in 2012 and on previous occasions. What occurred in those negotiations is undoubtedly important to the parties, and may have a bearing on the remedy to be provided for the breaches found, but no reference will be made to it here because it is not pertinent to whether the employer breached the collective agreement in the ways the union alleged. [29] The employer’s witnesses testified about differences between the urgent management style of the employer’s current CEO and the styles of previous CEOs. The union treated this as an attempt to justify conduct contrary to the collective agreement, which employer counsel made clear it was not. I understood it as an attempt to explain why, in matters in which it claimed that the collective agreement gave it discretion, the - 12 - WSIB would have exercised its discretion differently in 2012 than it had in the past. While they may be at odds about the requirements of the collective agreement, the parties agree that those requirements are not a function of management style. The Article 6.03(a) notice issue [30] January 13, 2012 was the first date on which notice under Article 6.03(c) was given3 with respect to changes that were the subject of the notices to employees that were given in February and March. The union says that the employer’s failure before that date to give the union any notice of its planning of organizational and technological changes was a breach of Article 6.03(a) of the parties’ collective agreement.4 On the evidence before me the union says that the employer’s obligation to give notice under Article 6.03(a) arose no later than the month of November, 2011. I agree. [31] Article 6.03(a) provides as follows: 6.03 Advance Notice and Information a) As soon as possible during the planning of Organizational/Technological changes, the Employer will discuss their intentions and the expected effects with the Union and will provide regular updates The union says this requires that the Union to be given notice of Organizational/Technological changes while they are in the planning stage, before a decision is made. The employer says the obligation only arises once the Employer has made a decision to proceed in a particular way and can identify the impact on employees of proceeding in that way. 3 Some of the contemporaneous documents give January 12, 2012 as the date of this meeting. My understanding is that when January 13, 2012 was ultimately set as the date for the meeting there was agreement that for some purposes it would be treated as having taken place on January 12, 2012. 4 The employer takes the position that this issue was not raised in or by the three grievances referred to arbitration. It did not object to my hearing and determining it, but reserved the right to argue, if it is found to have breached the provision, that the union’s having raised the issue for the first time at the beginning of the hearing before me is a factor to be considered in determining the remedy for such a breach. - 13 - [32] Union counsel referred to the definitions of “planning” in The Miriam Webster Dictionary – “the establishment of goals, policies, and procedures for a social or economic unit” – and at BusinessDictionary.com: A basic management function involving formulation of one or more detailed plans to achieve optimum balance of needs or demands with the available resources. The planning process (1) identifies the goals or objectives to be achieved, (2) formulates strategies to achieve them, (3) arranges or creates the means required, and (4) implements, directs, and monitors all steps in their proper sequence. She argued that “planning” in Article 6.03(a) refers to the formulation of plans and the narrowing down of options that the employer is seriously considering, prior to a decision being made. She submitted that this is consistent with the use of the words “intentions” and “expected effects” in Article 6.03(a), both of which imply an aim or goal, rather than a final decision or a determined course of action. She contended that to limit “planning” to what occurs after a concrete decision has been made is overly narrow and contrary to the plain meaning of the word, in that “planning” is not limited to the process of implementing a decision already taken. She referred to labour relations board and other decisions about labour relations obligations in relation to plans and planning.5 [33] Employer counsel argued that since the employer’s obligation is to discuss its intentions, the meaning of “intention” must be considered in determining when that obligation arises. He quoted definitions of that word from the Merriam-Webster dictionary – “a determination to act in a certain way” – and the Oxford Dictionary – “a thing intended; an aim or plan.” He submitted that these definitions make plain that the obligation imposed by Article 6.03(a) only arises once the Employer has made a decision to proceed in a particular way. He suggested that the phrase “as soon as 5 United Electrical, Ratio & Machine Workers of America v. Westinghouse Canada Ltd., 1980 CanLII 893 (ON LRB) (Burkett), IWA v. Consolidated-Bathurst Packaging Ltd. [1990] 1 S.C.R. 282, OPSEU v. Management Board Secretariat, 2005 CanLII 8247 (ON LRB) (McLean), Re Government of Saskatchewan Government Employees’ Union, [1989] S.L.R.B.D. No. 52 (Ball) and Re Canada Post Corp and CUPW (1995), 38 C.L.A.S. 425 (Swan). Union counsel also referred to BC Rail and Transportation Communications International, System Board 496, Local 1828 (1990 CLB 13465) (Hope) and Re Cargill Foods and UFCW, Local 633 (2008), 175 L.A.C. (4th ) 213 (Craven) in the course of her argument. - 14 - possible” in Article 6.03(a) should be read as requiring discussions only when they would be “practicable,”6 and invited me to conclude that Requiring the Employer to engage the Union in discussions any time a layoff or other form of Organizational/Technological [sic] is even contemplated can hardly be described as practical. The purpose of provisions such as this one is to provide the Union with an opportunity to advocate on behalf of its members. There is no practical purpose served by providing the Union with information about a change which is entirely hypothetical. To require the Employer to do so would constitute a waste of both Employer and Union time and resources and could well cause serious labour relations disruption. Employer counsel relied on the observation of the Ontario Labour Relations Board, at paragraph 41 of its decision in Westinghouse Canada Limited,7 that requiring an employer to initiate discussions at the bargaining table about plans that have not become at least de facto decisions could have serious industrial relations consequences. He submitted that the employer cannot be said to be “planning” an Organizational/Technological change before there has been a decision to implement such a change, that it would make no sense to interpret the provision in question as requiring that the WSIB notify the Union every time any member of management had an idea about a change they wanted to consider implementing. [34] Employer counsel argued that the WSIB was “entitled” to develop its position as to how it was going to proceed before it was obligated to notify the Union, citing an award of Arbitrator Stanley’s8 in which he said [53] First, much of the frustration experienced by the Union seemed to stem from a concern that management was coming to meetings with a position. In our view the Union goes too far when it suggests that management is obliged to consult with the Union prior to developing their own position. As Arbitrator Bendel said above – “The employer is entitled to enter discussions with the union with a particular objective firmly in mind”. Thus it does not offend the provisions of the collective agreement when Management comes to the Restructuring meeting with a proposal. There is an analogy to collective bargaining. The employer comes to the bargaining table with a position which they give to the Union. They are not bargaining in bad faith simply because they have staked out a position. 6 Re Int'l Union, United Plant Guard Workers, Local 1962, and Ford Motor Co. of Canada Ltd (1966), 17 L.A.C. 417 (Reville) was cited in this connection. 7 supra, note 5. 8 Centre Grey Hospital and London & District Service Workers Union, Local 220, 1998 CLB 11943 at ¶53. - 15 - [35] When an employer is considering making significant changes to what it does and how it does it, a trade union representing its employees has an evident interest in being aware of this and of the reason for it, particularly before the employer is committed to a particular way of achieving its underlying objectives, so it can propose reasons to alter those objectives or ways of achieving them that minimize adverse impact on employees. Apart from concerns that the information might be used by competitors or others to its disadvantage, the employer’s interests include limiting the union’s awareness of the options it is considering before it has adopted one, so as to limit controversy over things that may never happen. The balance of these and other interests that is struck by parties to collective bargaining will very much depend on the nature of the parties’ relationship and the nature of the business in which the employer is engaged, among other factors, and must ultimately be discerned from the language on which the parties have agreed. [36] It is not self-evident that a provision like Article 6.03(a) cannot be “practicable” if it requires notice of planning before that planning has resulted in a decision to eliminate or substantially change particular bargaining unit positions. It may not be practicable in some collective bargaining relationships, relationships in which one would not expect to see in a collective agreement anything like Article 6.03(a). As for this relationship, however, I have Mr. Goslin’s unchallenged testimony that in the past, when the employer was going to make decisions that could impact job security, it had involved the union in its planning process through his participation (or participation by other members of the union’s executive) in project committees or steering committees. This had sometimes begun several months, even one or two years, before the employees who were ultimately affected received notice under Article 6.05.9 Although Mr. Jackson and Mr. Simourd both identified a sense on management’s part that past outcomes of negotiations mandated by Article 6.02 had favoured union/employee interests more than current employer interests would likely warrant, neither suggested that union’s 9 This is not to say that I accept the union’s argument that this past conduct reflects a shared understanding of the requirements of Article 6.03(a). The evidence does not establish that what previous management did in this regard was said or understood to be compelled by Article 6.03(a), nor can it be said that consultation with the union was something that no employer of this sort would have done unless it felt legally compelled to do it. - 16 - having been informed in the past about the employer’s planning before its plans had fully crystallized had itself caused any particular difficulty. [37] The labour relations board decisions to which reference was made in argument struggle with the “plans” and “planning” problem in a different context, and from a different perspective. There the question was whether and to what extent the statutory obligation to bargain in good faith for the making or renewal of a collective agreement, an obligation that applies to all collective bargaining relationships, requires that an employer party reveal in bargaining things it is planning or has planned that may have an impact on the bargaining unit, either of its own motion or in answer to questions. Here, my task is to determine the meaning of language to which both parties have agreed. That language must be the focus of the analysis. [38] “Planning” is the process by which a “plan” is made. The word ordinarily describes an activity that starts with a decision to make a plan in order to achieve a particular objective, and results, or is expected to result, in a plan by means of which that objective may be achieved. The objective may be defined in very general terms, with the expectation that the resulting plan will also be in general terms that would require further planning to implement. Moving from setting an abstract goal to identifying specific actions to achieve that goal in a particular way may involve a series of planning stages that are punctuated by decision making about whether and to what extent the result of one stage of planning will define the objectives for the next stage, if any. [39] Being engaged in planning is not the same thing as being committed to implement whatever plan may be its result. Particularly in a large organization, the plan that results from someone’s planning may require someone else’s approval before it can be the basis of implementation or further planning. “Planning” can describe any one of the activities or stages identified in the four part definition quoted earlier in paragraph [32]. It is not limited to a process by which the employer determines how to concretely implement a strategy that it has adopted as a result of earlier stages of planning. - 17 - [40] Article 6.03(a) does not apply to all planning. The planning that will trigger an obligation thereunder is planning of “Organizational/Technological change” (hereafter, “Org/Tech change”). The parties have defined that term at the beginning of Article 6: Organizational/technological change means the introduction of equipment, material, work functions, processes, methods, organization or geographic location that is significantly different from what is currently practiced. If determining how to achieve something that fits this definition is the objective of the planning, or clearly essential to achieving that objective, then that planning is planning of Org/Tech change. [41] There is no express reference in the parties’ definition of Org/Tech change to layoffs, redundancies or any other particular impact that an Org/Tech change might have on employees in the bargaining unit. Things that are later addressed in Articles 6.03(c) and 6.05 need not be the current focus or level of specificity of the planning in order for that planning to constitute planning of Org/Tech change for purposes of Article 6.03(a). Indeed, it would seem to be enough if the planning is concerned with determining how to transform “processes,” “methods” or “organization” into something “significantly different” from what currently exists. [42] I agree that there must have been a decision of some sort before it can be said that the employer is engaged in planning Org/Tech change. The obligation is not triggered by some manager’s thought that some change may be desirable. The requisite decision is a decision to engage in planning with a particular objective, one that brings the planning within the parties’ definition of Org/Tech change. If someone the employer authorizes to do so engages in such planning then the employer is engaged in it, even if the person doing the planning does not have sufficient authority to implement whatever plan may be its result. [43] Article 6.03(a) says that when the employer starts planning Org/Tech changes it must discuss its “intentions” and “the expected effects” with the Union “as soon as possible,” and provide regular updates thereafter. What that requires of the employer will depend on the circumstances. Certainly it requires that the employer initiate a discussion “as soon as possible” after the obligation arises. The “intentions” it must - 18 - reveal would include, at least, the objective it has set for the planning, however generally defined that objective may be at that stage (bearing in mind that it will have been particular enough to engage the parties’ definition of Org/Tech change as I have said). The expected effects would be, at least, the desired or anticipated effects of achieving that objective. “Updates” would be required, at least, when the employer’s “intentions” change or evolve, as where planning reaches a stage at which approval is given of a more detailed or focused planning objective going forward, or where, for example, previously unrevealed effects of achieving the planning objective become apparent in the course of the planning. [44] Central to this view of the obligation created by Article 6.03(a) is that the employer initiates the discussion having adopted an objective for the planning in which it is engaged. This is consistent with the remarks of Arbitrator Stanley on which the employer relies, which do not seem to me to stand for the proposition that an employer is entitled to take its planning objective to a particular level of specificity before a provision on which it has agreed can require it to give notice of its being engaged in planning. [45] It may be that not much discussion will ensue when the objective for the planning has only been set in very general terms. The language of Article 6.03(a) does not seem to require that the union be as fully integrated into the employer’s planning process as Mr. Goslin testified that it has been on past occasions. It does not explicitly require that the employer’s communications with the union go beyond identifying its intentions and expected effects, although such an obligation may be implied from the use of the word “discuss.” Whether and to what extent such an implication arises, and what it requires, are best assessed in the context of a specific discussion. [46] The focus of parties’ evidence was on the eliminations of Branch Secretary and Employer Liaison Specialist (“ELS”) positions, and of various Business Technology Services (“BTS”) positions, that were announced in early 2012. The union’s case is, essentially, that those announcements must have been preceded by planning that - 19 - should have been but was not the subject of a discussion initiated by the employer as and when Article 6.03(a) required. Elimination of Branch Secretary and Employer Liaison Specialist positions [47] The employer’s evidence about the elimination of Branch Secretary and ELS positions came from Mr. Jackson and, to a lesser extent, Mr. Simourd. Both were in HR positions at the relevant times. [48] Mr. Jackson testified that David Marshall became President and CEO of the WSIB in late January 2010. He said Mr. Marshall had a mandate to get the WSIB back on a solid financial footing in the wake of an Auditor General’s Report in late 2009 that expressed concern about the size and continued growth of the WSIB’s unfunded liability. Mr. Jackson returned to the VP of HR position shortly after Mr. Marshall arrived. He said it was quickly apparent to him that Mr. Marshall was planning to transform the organization. [49] In October 2011 the employer’s Executive Committee consisted of Mr. Marshall and four or five executives of Chief Officer rank, all but one of whom had been hired after Mr. Marshall arrived. During his tenure as VP of HR Mr. Jackson was not a member of the Executive Committee, but was invited to its meetings on occasion. [50] Mr. Jackson testified that he was first made aware that the organization was considering eliminating positions on October 27, 2011, at a meeting of the Executive Committee to which he had been invited. He said Mr. Marshall told the meeting that he wanted the team to take a hard look at the business and make decisions about positions that might not provide as much “value-add” as others. Mr. Jackson testified that two positions “jumped out” in the discussion that ensued at that meeting: Employer Liaison Specialist and Branch Secretary. There was also a discussion about BTS and the possibilities that existed there. Mr. Jackson said that there was no “decision” on redundancies at this meeting, as work needed to take place with the operating areas and HR. Staff in HR worked with their assigned operating areas to gather information for future decision making, such as the number of incumbents, their role, the positions’ - 20 - value to the organization, the demographics in the jobs and attrition rates and retirement possibilities. [51] In his argument employer counsel described this meeting as “the first time layoffs were even raised as a possibility.” The evidence, as I have noted, is that it was the first time this was raised with Mr. Jackson. He acknowledged that he had not been privy to any prior discussions among Mr. Marshall and his Chief Officers about whether staff reductions would be necessary. Mr. Jackson was clearly not in a position to say whether there had or had not been any such discussions before October 27, 2011. [52] Mr. Jackson resisted the suggestion that he was notified at this meeting of a decision to reorganize and eliminate positions. He said “decision” was a “strong word,” that what took place at the meeting was “brainstorming” – looking at the organization and possible organizational changes. He acknowledged that he had been invited to this meeting because the discussions had “HR implications.” He would not concede, however, that a decision must have been made before that meeting that something was going to happen that had HR implications. [53] On November 15, 2011 a Corporate Business Plan was presented to and approved by the WSIB’s Board of Directors. It contemplated “gains in effectiveness and efficiency” through, among other things, “auto adjudication,” restructuring of IT capabilities and reorganization of BTS to be customer facing and responsive, streamlining of work processes and re-skilling of the workforce. It described a future state in which the WSIB would be a “nimble and flexible organization, with less bureaucracy and with staff that are more specialized, technically savvy and highly skilled.” [54] In the absence of evidence to the contrary I infer that what Mr. Marshall said at the meeting of October 27, 2011 did not come “out of the blue” from the other participants’ perspective, and that the “jumping out” of Employer Liaison Specialists (“ELS”) and Branch Secretaries as positions that might be eliminated was not a spontaneous event with no antecedents in prior thought. I also infer that the Corporate Business Plan approved on November 15, 2011 was the result of planning. On all the - 21 - evidence before me it is difficult to imagine that those who set the objective for that planning thought it might be achieved without making any “substantial” differences in “processes,” “methods” or “organization.” Whatever might be said about the period before October 27, 2011, however, what that meeting clearly authorized and directed was planning of the elimination of positions, and that triggered the obligation in Article 6.03(a) even though there had been no decision to implement whatever plan might result. Moreover, it is clear that the planning needed to give effect to the Corporate Business Plan after it was adopted on November 15, 2011 would certainly have been “planning of Organizational/Technological changes” in the sense intended by Article 6.03(a), even though the implementation of any such plan might require a further decision at a higher level than that of the people directly engaged in the planning. [55] Mr. Jackson testified that he was invited to a further Executive Committee meeting that was held on December 7, 2011. He said that by then “information gathering” had been completed and that in that meeting “we did solidify” that ELS and Branch Secretary positions would be “impacted.” He said that the union was not advised at this point because some things still had to be decided. Decision making with respect to these positions was concluded in mid-December, he said, but management chose not to inform the union between then and the meeting in mid-January at which it intended to give the union notice under Article 6.03(c) because of the holiday season. [56] Mr. Simourd recalled having attended a meeting with Greg Coulson, the person to whom he reported, and three HR people on December 11, 2011, at which he learned that in some areas decisions had been made about impacting staff, and that in February there would be notices to approximately 300 employees in BTS and the “admin area” and possibly others. [57] When asked in re-examination to elaborate on his earlier statement that article 6.03(a) notice could have been given in December but was not, Mr. Jackson said (among other things) that there was a level of frustration about past negotiations under Article 6.02 to enhance the treatment of affected employees relative to the requirements of the collective agreement, that the union was never satisfied and always wanted more, and - 22 - that some members of management felt they should just “stick to” the provisions of the collective agreement. Mr. Jackson also said, as did Mr. Simourd, that (paraphrasing in part) the employer did not want to go to the union “piecemeal” with things that had been decided when other things about which they would likely have to go to the union had not yet been decided. Although decisions had solidified with respect to these groups, thinking about other groups was ongoing and “based on past history” there had been a decision not to move forward with “discussions.” [58] In reply, Mr. Goslin testified without challenge that the employer had informed the union of substantial upcoming redundancies in December of 2009, and again in December of 2010. Elimination of BTS Positions [59] During collective bargaining in 2011 the parties discussed a process for resolving historic and future disputes about whether some BTS positions were within the bargaining unit. At that point it was expected that someone would be hired to replace the Chief Information Officer, and that there might well be changes in that area after that happened. [60] John Hill became the WSIB’s Chief Information Officer in early September 2011. He testified that his mandate was to modernize the BTS and help the WSIB transform. He took until the end of that month to acquaint himself with what people felt had gone wrong in the past and were looking for going forward. One of the things he did that month was conduct a strategy workshop that focused on what the values and core competencies should be in BTS. [61] Mr. Hill’s first focus was on BTS management at the Manager and Director level: the organizational design, who reported to whom. He also reviewed studies by his predecessors of the possibility of outsourcing parts of BTS’s infrastructure, particularly the data centre. Mr. Hill had a meeting with the managers in the BTS on October 24 and 25, 2011 to discuss the management structure and possible realignment of the group. - 23 - [62] On November 2, 2011 Mr. Hill met with Mr. Marshall and another member of the Executive Committee and presented a proposed transformation, including redesign of the management structure, changes in the way software applications were developed and outsourcing of the data centre. He was able to tell them that the outsourcing would eliminate 71 jobs, both bargaining unit and non-bargaining, and that 53 other jobs would either be eliminated or restructured. He provided a calculation of the costs of the proposed transformation. At this meeting he was given the go-ahead to change the management structure, engage consultants to assist him with changes in the application development process and proceed with the next level of planning regarding outsourcing. [63] At some point the areas considered for outsourcing expanded from the data centre to include production printing and network and desktop administration. [64] Mr. Hill testified that the only impact on bargaining unit employees of the changes in management structure on which he had settled in early November 2011 was on who they reported to and not what work they did. He said the other items still required weeks and weeks of detailed planning. Be that as it may, once he had been authorized to plan outsourcing Mr. Hill was engaged on the employer’s behalf in planning of Org/Tech change, and the employer was obliged to initiate a discussion with the union as soon as possible. Again, this was so despite the fact that the planning had not yet resulted in a detailed plan and that implementation of that plan, whatever it might ultimately be, had not yet been authorized. Those circumstances may have limited what the employer was obliged to disclose at the outset of the discussion, but Article 6.03(a) required that it initiate a discussion. [65] Mr. Simourd testified about a meeting he had on November 3, 2011 with Isabel Pinelli, an HR Business Partner in his department who worked with Mr. Hill on HR issues in BTS. He said that at this meeting she told him about a meeting she had attended the previous Monday, October 31, 2011, in which she had laid out for the union’s executive future state and time line information concerning the transformation of BTS. Mr. Goslin denied there was such a meeting. He said he had not met with Ms. - 24 - Pinelli on that date and that all other members of the executive had been in British Columbia that week. The employer did not call Ms. Pinelli to give direct testimony about what Mr. Simourd said she had told him. There is no suggestion that she was beyond the reach of a summons. I conclude that there was no such meeting with the union. [66] Mr. Goslin and others met with Mr. Hill on November 14, 2011 to discuss the upcoming transformation of the management structure in the BTS. Mr. Hill identified that the way union members worked was going to change, and that he was continuing to look at how BTS delivered infrastructure and application services. Mr. Goslin testified that the information provided at the meeting was from a “thousand foot” perspective, and that Mr. Hill did not advise the Union of any specific changes or provide the Union with any details of any intended changes. Mr. Hill testified that he did not tell the union about future impacts on bargaining unit employees at that meeting because he did not have details or numbers or who specifically would be affected. He did not provide the information he had given the executive committee about numbers because this was “not close to being final” and he was “not ready to have that discussion.” When the union asked about outsourcing at this meeting of November 14, 2011 he told them that outsourcing was a tool in his tool bag, and that he would not remove a tool from his tool bag. He did not say that he had been authorized and directed to prepare an outsourcing plan with respect to the data centre, and perhaps other infrastructure areas. [67] On December 8, 2011 the Executive Committee approved a plan Mr. Hill then presented to it, which included outsourcing of infrastructure. Mr. Hill acknowledged that he knew then that this would impact some bargaining unit employees. Asked in examination-in-chief why he had not given the union notice then, he said that the big issue was the Christmas holidays. He was going to be on holiday December 19 to January 6, and thought this was not the thing to drop on someone just before the holidays. - 25 - [68] During his reply testimony Mr. Goslin said that he had meetings with Mr. Simourd and HR representatives in the fall of 2011 in which he asked about the possibility that the data centre would be outsourced, and was told that if that occurred it would only affect 12 people. This was not notice that an outsourcing was then the subject of planning, or of an approved plan, particularly not with respect to an outsourcing that, as it seems from Mr. Hill’s testimony, was thought likely to affect substantially more than 12 employees if approved. [69] The union was told on January 13, 2012 that a number of employees in the BTS would receive notices in early March 2012. It was later told that notices to BTS employees would be given on March 20, 2012. Mr. Goslin testified that when the union was told that there would be redundancy notices in the BTS the reason given was only that work had been automated or was no longer needed. He said the union did not learn that outsourcing of BTS work was being or had been planned until after BTS employees received their notices and their managers shared with them the RFP’s (Requests For Proposal) that the WSIB had issued with respect to the outsourcing. This was in reply to Mr. Hill’s testimony that because he had been asked questions about outsourcing at a meeting with the union in mid-February 2012, he inferred that they had been told about outsourcing at the meeting of January 13, 2012. There is no direct evidence that they were. I find that the union did not learn of the planning of outsourcing, or of a plan to outsource, any earlier than Mr. Goslin’s testimony identified. Conclusion [70] Article 6.03(a) requires that the employer initiate a discussion when it commences planning an Org/Tech change, even if it has not yet decided that it will implement any result of such planning. The obligation arises earlier in the planning process than the employer contended, and is independent of whether the employer is ready or able to give the sort of notice contemplated by Article 6.03(c) or Article 6.05. [71] As regards the process by which the employer came to decide on eliminating Branch Secretary and Employer Liaison Specialist (“ELS”) positions, and various Business Technology Services (“BTS”) positions, the obligation to initiate discussions - 26 - arose in November 2011 at the latest, and decisions made at meetings in December 2011 triggered an obligation to provide updates at that time. [72] It would have been open to the employer to seek the union’s agreement to delay a discussion in order to consolidate it with another that it might soon be obliged to initiate, but nothing in Article 6.03(a) permitted the employer to do that unilaterally. If the obligation had not been triggered until December, it would have been open to the employer to ask the union whether an Article 6.03(a) discussion could be delayed until after the holidays, particularly in respect of matters involving Mr. Hill, but it was not open to the employer to delay it for that reason unilaterally.10 The employer’s not being eager to engage in discussions of the sort required by Article 6.02 was certainly not a justification for delaying compliance with Article 6.03(a). [73] In short, the employer did not do what Article 6.03(a) requires. As the parties agreed, the remedy for that breach will be determined after a further hearing if the parties are unable to agree on it in the meantime. The Article 6.03(c) notice issue [74] Article 6.03(c) of the parties’ collective agreement provides that the employer must give the union certain information about an organizational change and have a “meaningful discussion” at least twenty working days in advance of giving notice to affected employees. The parties are in dispute about whether a notice that the employer purported to give under Article 6.03(c) at a meeting on October 24, 2012 complied with the requirements of that article. [75] On October 24, 2012, Mr. Gaspar and Ms. Ireland attended a meeting with Gurjit Brar, Director of Labour Relations, Lily Au, Human Resources Business Partner, Terri Ryall, Associate Human Resources Business Partner, and Steven Hummel, 10 This is not to suggest that Mr. Hill, or anyone else, would have been obliged to cancel a planned vacation in those circumstances. The obligation to give notice is that of the employer, not any one member of management. It is difficult to imagine that there would ever be a time when there was no one available to convey to the union what Article 6.03(a) requires that the employer convey in a timely manner, nor was it suggested that Mr. Hill’s absence would have left the employer unable to do so in this instance. - 27 - Human Resources Business Partner. Employer representatives stated that on November 22, 2012 the Employer would be issuing three notices of lay-off with respect to redundant positions and that there would also be a number of bumps. Mr. Hummel then provided the Union with a written memo dated October 24, 2012 with the subject “Article 6.03 c): Organizational/Technological Change – Advance Notice and Information.” The body of the memo read as follows: In accordance with Article 6.03 (c) of the Collective Agreement, the Employer is providing you with twenty (20) working days advance notice of organizational changes taking place within the WSIB over the next several weeks. The WSIB continues to be in the midst of a much needed transformational and modernization agenda leading to some very difficult but necessary organizational changes. This efficiency work is still in its infancy stages and will continue this year and beyond. Our approach to achieving the efficiencies will be realized, in part, through continued streamlining efforts to processes and programs. The result is that bargaining unit (BU) positions will be made redundant in the coming weeks. This information is strictly confidential and must not be publicly released without prior approval. We are confident that the Employer and OCEU will work together to ensure a smooth transition for all employees directly or indirectly impacted by these upcoming changes. Attached to the memo was a list with the title “Estimated Notice,” followed by 144 numbered lines each setting out the date “22-Nov-12” and the name, job title, home job grade, location and seniority date of an employee. [76] The union’s witnesses testified that the employer’s representatives said the total number of notices of layoff to be given on November 22nd would be no more than 77: three to employees whose positions would be declared redundant,11 and up to 74 to employees who were going to be displaced by employees who had either already received notice of redundancy or were about to receive notice of redundancy. The explanation given for listing more than 77 employees was that the employer had not yet received or solicited information from employees whose positions had been or would be declared redundant concerning their knowledge, skills and abilities, and without such 11 During his testimony-in-chief Mr. Gaspar said the union had not been given names and job titles except for the three who would be receiving notices of redundancy. I conclude that the union then understood that those three employees were the three NEL Records Clerks whose names appeared at the top of the list of 144 employees. - 28 - information there was a risk that in selecting bump placements for them they would identify the wrong people to be displaced. [77] Mr. Hummel advised the union that the names on the list could change and asked the union if it would consent to having those names changed up to November 21, 2012. Mr. Gaspar responded that the union would not consent to that. Mr. Hummel then handed the union what was said to be a new list of members who may potentially be affected by notices of lay-off on November 22, 2012. This list contained the names of 3206 employees. [78] Article 6.03(c) provides: 6.03 Advance Notice and Information … c) At least twenty (20) working days in advance of giving the employee(s) notice, the Employer and the Union will have meaningful discussion and the Employer will provide the Union Executive with written notice of: • the nature of the change, • date of change, • number of positions affected, • job titles affected, • location(s), • name and seniority date of employees likely to be affected, • the expected effects on employees, • job descriptions and salary grades for all new or changed jobs. It is understood that this material is confidential and should not be publicly released without the consent of the employer. [79] The parties agree that there has been a consistent past practice between them that the notice provided by the employer to the union would include, among other things, the specific positions that would be laid off and the names of specific employees likely to be affected. [80] The union acknowledges that notices of layoff have not always been given to each and every employee listed in an Article 6.03(c) notice. It says that the employer does not have to give notice to every person named in an Article 6.03(c) notice, but cannot give - 29 - notice to someone not named in such a notice. It notes that employee departures that occur unexpectedly after an Article 6.03(c) notice is given can result in the employer’s needing to give fewer notices to employees, as can the outcome of the parties’ discussions about reducing the impact of the proposed changes on employees. Union counsel argued that the words “likely to be affected” were meant to accommodate those sorts of prospects, not to give the employer licence to ignore the requirement that it give the union particulars of the effects of its planned Org/Tech change at least 20 working days prior to giving any affected employees notice of layoff. [81] The union says that the notice listing 144 names did not comply with Article 6.03(c) because it did not state the precise number of positions to be affected, did not state the precise job titles of the positions to be affected and was at least twice as long as the number of notices of lay-off the employer advised the union orally that it intended to issue and seven times as long as the number of notices of lay-off that the employer ultimately issued on November 22, 2012. The union submits that the employer’s action in providing a list of 144 names when it intended to issue far fewer notices of layoff seriously impeded the union’s ability to represent its members and advocate for their interests because without the specific names and titles of the employees to be affected the union was unable to turn its mind to what concerns are giving rise to the impacts and what the employer’s goals were, and therefore it was not in a position to try to figure out how to mitigate the impacts or make proposals for mitigation to the Employer. [82] Union counsel cited several awards for the proposition that notice provisions in collective agreements deserve profound respect and are a substantive contractual obligations, and that “meaningful discussion” between the parties requires certainty with respect to the identity of the positions to be eliminated.12 12 CBC v. CEP (In the Matter of a Grievance re Contracting Out – Unit 2), unreported award dated October 6, 1997 (Knopf), Re Community Living Niagara Falls and S.E.I.U., Local 204, [1996] O.L.A.A. No. 388 (Tacon), Re Hamilton Health Sciences Corporation and CUPE, Local 839, (2001) 94 L.A.C. (4th ) 156 (Adams), and Re Community Nursing Home – Port Perry and ONA, (2008) 171 L.A.C 143 (M.R. Newman). - 30 - [83] As for the list of 3206 employees that was tendered later in the meeting, union counsel submitted that whatever the term “likely to be affected” may mean, it would be an absurd to say that 3206 employees were “likely” to be affected (in the sense intended by Article 6.03(c)) by a maximum of 77 notices of lay-off. She says the fact that the employer representatives came into the meeting with the list of 3206 names already prepared demonstrates that the employer knew that the list of 144 names did not meet the requirements of Article 6.03(c) and would not be acceptable to the union, and that the employer did not have any intention of complying with the requirements of Article 6.03(c). [84] The employer says its conduct on October 24, 2012 did not breach requirements of Article 6.03(c). Initially its defence relied in part on the proposition that Article 6.03(c) did not require that it give the union advance notice that it will be giving notice of layoff to employees who will be displaced as a result of bump placements of more senior employees. As I have already noted, the parties ultimately agreed that I should not decide that issue in this decision. This leaves for my determination the employer’s argument that Article 6.03(c) requires only that it provide names of employees likely to be affected, but not that it provide a precise list of affected employees. In that regard, employer counsel observed that the provision in issue here is markedly different from the language considered in the awards cited by union counsel, which did not provide the flexibility that, he submitted, the use of “likely” implied. [85] Article 6.03(c) provides a list of several sorts of things that the employer has to tell the union about a change in respect of which it may later give notice to affected employees. Only “name and seniority date of employees” is qualified by the phrase “likely to be affected.” The other things of which it is required to give the union notice – the nature of the change, date of change, number of positions affected, job titles affected, location(s), the expected effects on employees, and job descriptions and salary grades for all new or changed jobs – are not qualified in that way. It is easy to make sense of this distinction, at least when the anticipated notice to employees is notice that their positions will be eliminated or substantially changed. Before the employer can give such notice it has to decide what positions will be eliminated or substantially - 31 - changed. The union is then entitled to at least 20 working days’ notice before the incumbents of those positions can be given notice of the elimination or substantial change of their positions. The purpose of the notice to the union in those circumstances is to give it time to have a meaningful discussion with the employer about the intended changes, to see if their adverse effects can be minimized. [86] The hard limit inherent in the language of Article 6.03(c is that subsequent notice to employee may only be given to incumbents of positions identified in the Article 6.03(c) notice. The provision for “meaningful discussion” would be largely illusory if the employer could start the 20 working day clock without identifying with precision the positions it intended to change or eliminate. It can fairly be expected to do that with precision. What it cannot be expected to say with perfect accuracy is who the incumbents of those positions will be 20 or more working days hence. Those who are incumbents now may not be incumbents then, as a result of circumstances that the employer cannot control or predict – hence the “likely to be affected” qualification. The provision does not require that notice of layoff be given to everyone named in an Article 6.03(c). [87] I do not agree with the union that Article 6.03(c) entirely precludes the employer from giving notice of layoff to someone not named in an Article 6.03(c) notice. Giving notice of layoff to an employee not named in an Article 6.03(c) notice would not be inconsistent with the language of the Article if that employee is an incumbent in a position that was clearly identified in the Article 6.03(c) notice and her or his incumbency in that position could not have seemed likely to the employer when the Article 6.03(c) notice was given. It may be improbable, as a practical matter, that someone would find their way into a position after the employer had decided to eliminate it without the employer’s having been able to foresee who that person was likely to be, but it is not self-evidently impossible. [88] Any contention that “likely to be affected” is meant to accommodate incomplete planning or decision making about what positions will be substantially changed or eliminated, is inconsistent with the evident expectation that there could be meaningful - 32 - discussions about the elimination or substantial change of positions on the 20 working day time frame on which the parties agreed. Unless the employer expects an astonishing rate of turnover in positions after it has decided to eliminate them, it would be incongruous for it to contend that the cohort of employees “likely” to be in those positions when notice is later given to their incumbents is twice (or more than twice) the number of positions. [89] Only three of the employees listed in the notice of October 24, 2012 were incumbents of positions that the employer intended to eliminate. It seems common ground that the employer’s notice complied with Article 6.03(c) in respect of those employees and their “NEL Record Clerk” positions. The others listed were individuals who the employer contended might be “displaced” by bump placement of employees who had either already received notice of redundancy or were about to receive notice of redundancy. It made it clear that there would be, at most, 74 notices resulting from such bump placements. Its explanation for the much larger number of employees listed was, essentially, that it had not yet determined what positions would be the targets of the bump placements, that it had more information gathering to do before it could make that determination. [90] I have been asked not to decide whether Article 6.03(c) requires that the union be given advance notice of the giving of notice of layoff to employees who will be displaced as a result of bump placements. If Article 6.03(c) does apply in those circumstances, however, then the Article would require the same degree of precision in identifying the positions into which bump placements will be made as it does in identifying positions that will be eliminated or substantially changed, and the same degree of precision in identifying the employees “likely” to be in those positions when notice of layoff is given. While there may be some uncertainty about who may be in those positions 20 or more working days hence, it seems equally incongruous in this context to suggest that the number of likely incumbents is twice the number of positions into which bump placements will be made. - 33 - [91] If Article 6.03(c) requires that the union be given notice of the positions into which bump placements will be made and the individuals likely to be affected thereby then, just as with notice of positions to be eliminated or substantially changed, if the employer has not yet identified with certainty the positions into which bump placements will be made, then it is not yet in a position to comply with the Article and would have to get further along in its planning process before it could give the notice that Article 6.03(c) requires. The VE match issue [92] On November 1, 2012, seven bargaining unit employees in positions at salary level 208 received notices of redundancy. On or about November 22, 2012, each of them was placed by way of VE match in a position below salary level 208. The union contends that the employer could not do that if the employees did not request that they be matched to posted vacancies or Voluntary Exits at salary levels below level 208. The employer does not contend that any of them made such a request.13 It simply contends that it can place an affected employee by way of VE match in a position at a lower salary level, if that is the most suitable option, without the placed employee’s consent. [93] Article 6.15(c) says that an employee who refuses a VE match “to their same salary grade and their current location” will be “deemed to have terminated their employment.” It goes on to say that the same applies to a VE match below the employee’s current salary grade only if the employee has requested consideration for such matches. Article 6.06(a) says that if the employer identifies a suitable VE match “in the same grade and same location,” the employee “will be placed into that position.” Article 6.06(c) says that an employee for whom there is no Priority Placement or match under 6.06(a) “is encouraged to request” consideration for VE matches below the employee’s salary grade. The employer’s argument fails to adequately account for the 13 The union’s argument on this issue anticipated that the employer would rely on the employees’ answers to a question in the “Knowledge Skills & Abilities” forms it uses to collect relevant information from employees in order to determine the most suitable option for their placement. The employer did not make the anticipated argument, so no reference to the union’s answer to it is needed. - 34 - parties’ having made these distinctions between matches at the same salary level and matches at lower salary levels. [94] The obvious implication of these distinctions is that the employer can only compel placement by VE match to a position at a lower salary grade (in the same location) if the employee has requested consideration for such matches, and not otherwise. I find that the employer breached the collective agreement by making such placements of employees who had not so requested. The “Early Bump” Issue [95] The parties are in dispute about whether the employer can implement a bump placement before the end of the placed employee’s notice period. This dispute arose in the fall of 2012, when the employer did that for the first time ever. The union says that the collective agreement requires, either on its face or when interpreted in light of past practice, that the employer not implement a bump placement until the notice period of the placed employee has expired. In the alternative, it says the employer is estopped from doing so by its past conduct and representations. [96] I find that the relevant provisions of the collective agreement do not preclude the employer from implementing bump placements during the placed employee’s notice period. I also find, however, that the employer was and is estopped from doing so during the life of the current collective agreement. I begin my explanation by describing the evidence with respect to past practice and estoppel. Events prior to negotiation of the current collective agreement [97] The pertinent provisions of Article 6 first came into force in the 1999-2002 collective agreement. Not long thereafter the union prepared Guidelines to help its members understand their rights and obligations under the new provisions about Org/Tech change. Those first Guidelines were reviewed and revised by the Employer’s then Director of Labour Relations in 2003, and then the union placed them on employees’ desks with the employer’s permission. Since at least 2007, jointly prepared Guidelines have appeared on the employer’s “CONNEX” intranet web site, with - 35 - periodic changes to reflect negotiated changes to the length of the notice period. Until after negotiations for the 2011-2016 agreement concluded, the Guidelines always contained a statement that if a member is given a notice of redundancy and a viable job vacancy does not arise “at or near the end” of the redundancy notice period, the employer will consider bumping the employee into the position of an employee with lesser seniority. Since 2007 the jointly prepared Article 6 Guidelines published on the employer’s intranet have also contained a statement that the document is not intended to replace or supersede Article 6, and that “Where differences arise between the Guidelines and the Collective Agreement, the Collective Agreement applies.” [98] In around 2002 or 2003, in the context of the planned redundancy of 260 data entry and word processing employees, Mr. Goslin toured the province with Andrew Doppler, an “HR business partner” on the employer’s Human Resources staff, to advise employees with respect to their Article 6 rights. He and Mr. Doppler both explained to affected employees that the Employer “would not” bump an employee until the end of the 80-day notice period specified in the collective agreement then in effect. [99] In 2005 the employer advised the union that its Guelph office would be closing. The parties negotiated an agreement (hereafter, “the Guelph closure agreement”) concerning the relocation or otherwise of the employees in that office. The negotiators and signatories for the employer were Alan Mikkelson and another person not clearly identified by the witnesses’ testimony. This Guelph closure agreement expressly provided that “a bump could be implemented immediately if the employer, the affected employee and displaced employee voluntarily agree” and that, in those circumstances, the displaced employee would have 200 working days’ notice of layoff. That was twice the 100 day notice required by the version of Article 6.05 then in effect. Mr. Goslin testified that this provision for early bumps had been sought by Mr. Mikkelson, who had said to him that under the collective agreement the employer “could not” implement a bump until the notice period had expired. The employer did not call Mr. Mikkelson to rebut this testimony, nor did it suggest that he had been beyond the reach of a summons. - 36 - [100] Mr. Jackson was VP of HR when that agreement was made. When asked in cross-examination if he would have had to “sign off” on agreements made on the employer’s behalf, he said he would have been “in the loop.” He said he did remember the closing of the Guelph office but did not remember the specifics of the agreement made with respect to it. He said he could not remember whether he received a copy of that agreement. He did acknowledge that if the employer had thought it had the right to implement early bumps it would not have needed the union’s agreement to them. [101] The union’s witnesses testified without contradiction that during collective bargaining for the collective agreements that together covered the period from 2002 to 2011 the employer had never said it thought Article 6 allowed it to implement early bumps. [102] The union’s witnesses also testified to the effect that in both 2005 and 2007, during bargaining about the proposed increases in the length of the notice period, the employer’s spokesperson in those negotiations, Mr. Jackson, had said things consistent with the union’s view that bumps could not be implemented until the end of the notice period. Mr. Jackson denied this when he testified. I find it unnecessary to determine which set of recollections about these six and eight year old events is more accurate. Negotiations For The Current Collective Agreement [103] During his opening statement employer counsel alleged that during bargaining for the current collective agreement the employer’s spokesperson, Mr. Simourd, had specifically advised the union of the employer’s position that it could implement bump placements during the notice period. This alleged fact, if true, would have precluded the estoppel claimed by the union. [104] The union presented its case first. Its three witnesses –Harry Goslin, Cynthia Ireland and Martim Gaspar – testified that they had participated in those negotiations. Each vigorously disputed that Mr. Simourd had said what had been alleged by employer counsel in his opening. They testified that if there had been any such suggestion the union would not have agreed to the present terms of the current collective agreement to the membership for approval. - 37 - [105] In his examination-in-chief Mr. Simourd testified that during these negotiations a member of the union’s nine person bargaining team – he could not recall who, but thought it was not a union officer – had made a “statement about bumping,” saying that the employer had to wait to the last day of the notice period to bump. He said this happened during a discussion about a provision of the collective agreement other than Article 6. He stated that he responded to this statement by expressing disagreement and asserting that the employer does not have to wait to the end of the notice period. He testified that as part of this response he had read out Article 6.05(b), including the placement selection provision, and had said that in the past the employer had “acted near the end,” to which he said he “got some grudging agreement.” He also testified that Martim Gaspar had said that “if we did that they would grieve because that was not what we had done in the past.” In cross-examination it was put to him, and he denied, that this was something Mr. Gaspar had said about “early bumps” long after these negotiations concluded, when Mr. Simourd had told the union that the employer was considering implementing early bumps. [106] In cross-examination about his claim that he had said that the employer had “acted near the end” of the notice period with specific reference to bumps, Mr. Simourd’s attention was directed to the parties’ Agreed Statement of Fact, which records that “In the past, the Employer has not identified a bump of a less senior employee until the notice period has almost elapsed, and has not implemented the bump until the notice period has expired.” He then acknowledged that in the past if the option selected was a bump, the bump had not been implemented before the end of the notice period. He explained that what he had meant by his earlier testimony was that on this occasion in bargaining he had said that “placement decisions” – decisions about what was the most suitable option, whether VE match, Priority Placement or bump – had been made before the end of the period. He further clarified that the statement to which he had responded in bargaining had been that the employer could not make a “placement decision” before the end of the notice period, that his response had been that the employer had made “placement decisions” before the end of the notice period, and that it was that proposition to which he had received grudging agreement. He - 38 - testified that he had not used the word “bump” in this exchange, except when reading aloud the placement selection provision. [107] The union’s witnesses all testified that during bargaining, when presenting its proposal to increase the notice period from 120 to 140 working days, the union team had displayed to both teams (using “Proxima,” a digital projector) a document that gave this rationale for the proposal: it is in the interest of both parties to avert the financial cost and personal cost that arise from a bump. By building in 20 additional days the parties will increase their chances of finding a placement without having to invoke a bump. They also testified that an electronic copy of this document was given to Oran Laing, a member of the Employer’s bargaining team, that same day. Mr. Simourd testified that he did not remember seeing such a document, and based on some of its other content doubted that it would have been shared with the employer. Mr. Laing was not called as a witness. The employer did not contend that he had been beyond the reach of a summons. Events after the current collective agreement was concluded [108] Bargaining for the current collective agreement concluded in June 2011. In September 2011, Mr. Gaspar forwarded to Mr. Simourd a copy of the most recent Article 6 Guidelines, which he had amended to reflect the parties’ agreement during bargaining to increase the Article 6 notice period from 120 days to 130 days. The paragraph about the timing of bumps was unchanged: It is up to the employer to identify opportunities for a suitable job placement. If a viable job vacancy (posting) does not surface at or near the end of the 130 working day redundancy notice, the employer will consider displacing (bumping) the least senior employee with priority given to positions at or close to the protected salary grade. [109] Mr. Simourd did not respond to this message until February 6, 2012, when he sent an email seemingly agreeing to post on CONNEX a version of the Guidelines that contained the same statement with respect to bumps as had been in Mr. Gaspar’s draft. He copied that message to other members of management. Shortly thereafter, Mr. Simourd sent a second email message advising that there had been “some discussion about the bumping process” and that there was “some difference in opinion which has - 39 - not been resolved around the potential timing of bumps.” The message attached a revised version of the Guidelines for posting on CONNEX, in which the earlier draft’s statement about bumps was replaced with this: It is up to the employer to identify opportunities for a suitable job placement. If a viable job vacancy (posting) does not surface, the employer will consider displacing (bumping) the least senior employee with priority given to positions at or close to the protected salary grade. In response to this second message Mr. Gaspar said that the union could not agree with the changed description of bumping in the revised document, as it was inconsistent with how it had been done in the past. [110] Mr. Simourd testified that when he wrote in his second message about a “difference of opinion … around the timing of bumps” what he had in mind was the discussion in bargaining to which I have referred in paragraphs [105] and [106] of this decision. In cross-examination he denied that it actually referred to a disagreement that had arisen within management about whether the employer could implement early bumps without the union’s agreement. [111] In a meeting in February, 2012, with the ELS employees, Kerry Lovett, Human Resources Business Partner and Executive Director for the Operations Cluster, advised employees that an affected employee would not get bumped until the end of the notice period. Mr. Jackson and at least one other employer representative were also present, but did not contradict her statement. Mr. Jackson acknowledged this in his testimony, saying that while he had thought at the time that the employer could implement early bumps if it wished, he had not thought it appropriate to say that during the meeting in response to Ms. Lovett’s statement. (None of the employees at this meeting would have been among those later placed by means of “early bumps.”) [112] Confidential strategy documents prepared in February and March, 2012, for internal use of the employer’s Executive Committee contained statements that if the employer wanted to consider bumping prior to the end of the 130-working day notice period it would need the union’s agreement. These documents had been prepared by Greg Coulson, Executive Director of Strategic Business Services, who directly - 40 - supervised Mr. Simourd as Director of Labour Relations and was responsible for the “front line” delivery of human resources and labour relations. Mr. Jackson testified that in the discussions for which these documents were prepared he had disagreed with Mr. Coulson’s view. [113] Mr. Simourd says the question of bumping arose in a meeting later in February 2012 with unspecified union representatives, and that this was a catalyst for meetings with union officers, Mr. Gaspar and Mr. Goslin in particular. He testified that although he was not planning early bumps at that time he had wanted to explain to them the difference of opinion. [114] Ms. Ireland testified that on or about March 12, 2012 Mr. Simourd and two others representing management met with her and Mr. Gaspar. She said Mr. Simourd asked if the union was open to early bumps. He told them the employer had obtained an opinion that they could do early bumps, that this would be a way to facilitate their “leaner, faster” approach to reorganization, and that he was under pressure to realize savings. The question was discussed, but no agreement was reached. Ms. Ireland reported on this to Mr. Goslin. The following day Mr. Goslin, Mr. Gaspar and Ms. Ireland and three others from the union met with Mr. Simourd and Greg Coulson to discuss the matter further. Ms. Ireland testified that the employer’s position at this meeting was that it would be doing early bumps in future. The Meaning of the Collective Agreement [115] Union counsel argued that implementing a bump placement amounts to making the change of which the employee is entitled to notice, so that the notice requirement precludes its doing so before the end of the notice period. She submitted that the placement selection provision in Article 6.05(b) deals with selection of a placement option, not with its implementation. She noted that while a Priority Placement can take place during the notice period, such placements can only occur (in the union’s submission) with the placed employee’s consent. She acknowledged that when a VE match is the option selected it can be implemented during the notice period without the placed employee’s consent (if it is at the same salary level and location), but submitted - 41 - that this is permitted by Article 6.06(a) and that no provision similarly permits the implementation of a bump placement before the end of the notice period. [116] Union counsel also argued that, having regard to the order in which the placement options are listed, the language of article 6.06(g),14 the possibility that an early bump may become retrospectively “unnecessary” if unanticipated VE matches or vacancies arise thereafter, the evident (in her submission) objective of Article 6 of maximizing job security, and the employer’s obligation in Article 6.02 to minimize or eliminate the adverse effects of Org/Tech change, it is implicit that there should not be resort to making a bump placement until is it apparent that there is no prospect of a less disruptive placement in a VE match or job vacancy, which cannot be ascertained until near the end of the notice period. She also submitted that the employer was more likely to make mistakes in identifying the correct bump placement if this is done early, referring to the events of October 24, 2012 as further evidence of the difficulty with early bump placements. [117] Union counsel noted that the assurance the employer had given to employees who received early bump placements – that for the remainder of their notice periods they would continue to enjoy the same consideration for VE matches and Priority placements – was incorrect both factually (Mr. Simourd had acknowledged in his testimony that the employer did not look for VE matches for employees after they had had early bump placements) and as a matter of collective agreement interpretation (Article 5.03 makes it clear that affected employees who have been placed into a job at a lower salary grade have secondary placement rights, and says nothing about those placed at the same salary level). Relying on awards in the hospital sector,15 union 14 The portion of that Article on which union counsel relied says “Where priority placement rights have expired and an employee is willing to bump into another geographic location, relocation cost will only provided if there is no displacement match (bump) available in the employee’s current geographic location.” 15 Toronto Hospital v. CUPE Local 1744 (Policy Grievance 29-94) (award dated June 10, 1997, Charney), Re Kingston General Hospital v. CUPE Local 1974, (2002) 112 L.A.C., (4th) 104 (Devlin), Sudbury Regional Hospital v. CUPE Local 1623, [2007] O.L.A.A. No. 183 (Burkett), Kingston General Hospital v. CUPE Local 1947 (Notice of Elimination Grievance), [2012] O.L.A.A.. No. 179 (Burkett), Toronto East General Hospital v. ONA (Lay-Off Procedure Grievance), [2012] O.L.A.A. No. 288 (Stephens). - 42 - counsel contended that the agreed upon provisions for discussion of possible Org/Tech change and its impact, and for negotiation of provisions that may be necessary to assist affected employees, carry with them the implication that the status quo will be maintained until the end of the notice period, since otherwise the opportunity to engage in meaningful discussions would be undermined. [118] The employer argued that it is incorrect to describe a placement as the change of which notice is given. I agree. Article 6.05(b) clarifies that the notice given to employees in those positions is “130 working days notice prior to layoff.” It also provides that employees are to have “placement opportunities,” which are a means of avoiding layoff. A limit on when a layoff may be effected is not necessarily a limit on when placement may be implemented. Furthermore, as the employer argued, the contention that placement is something that cannot occur during the notice period is inconsistent with the union’s acknowledgement that a placement by means of VE match can be both selected and implemented during the notice period. [119] While the placement selection language in Article 6.05(b) clearly contemplates that a placement can be selected prior to the end of the notice period, I agree with the union that that provision does not say when the selection can be implemented. I do not agree that the language of Article 6 provides any more explicitly for implementation of an early VE match than it does for implementation of an early bump placement. Article 6.06(a) says that if the placement selected as most appropriate is a VE match at the same salary level and location, the employee “will” be placed in the position. It does not say when that can take place. Article 6.07(a) says that if the most suitable option is to displace an employee with less seniority then it “will” displace the least senior incumbent in a position selected in accordance with criteria set out in the article. Like Article 6.06(a), Article 6.07(a) does not expressly say when that can or must take place. The silence of these provisions with respect to timing would ordinarily leave it to the employer’s discretion, as a matter of management rights, whether the placement is implemented before the end of the notice period. If involuntary placement in a position by means of VE match can occur before the end of the notice period, as the union - 43 - acknowledges, then it is not apparent from Articles 6.06 (a) and 6.07(a) why a bump placement cannot also be implemented before the end of the notice period. [120] I agree with the employer that the order in which the placement options are listed in the placement selection language of Article 6.05(b) carries with it no implication as to when the most suitable option may be implemented. I also agree that, having regard Article 6.06(g)’s focus on the circumstances in which the employer will pay location costs, the implication union counsel contended for does not arise from that article’s references to bumping and the expiry of priority placement rights. I am not persuaded that the possibility that early bumps might be effected in a manner inconsistent with the collective agreement or might sometimes seem “unnecessary” in retrospect creates the implication that the employer cannot effect early bumps at all. [121] As for the incorrectness of the assurances given to those placed by way of bump, employer counsel made this submission: 66. The WSIB advised employees who displaced another employee before the end of their notice period that they would retain Priority Placement rights for the duration of the notice period. The WSIB agrees that this is not expressly stated in the collective agreement. However, the WSIB indicated that it would do so as a means of minimizing the adverse effects of Organizational/Technological changes on employees. Arguably, taking such a step is consistent with its obligations under Article 6.02. However, the fact that the WSIB provided this to employees does not mean that the WSIB could not displace the employees in the first place. That the WSIB provided this additional benefit may be subject to challenge by the Union – but it does not negate the WSIB’s ability to implement the bumps in the first place. I should say that the employer’s having unilaterally offered some affected employees rights inconsistent with the collective agreement cannot be justified by reference to Article 6.02, which requires that enhancement of the collective agreement rights of affected employees be the subject of negotiation with the union. I agree, however, that the employer’s having behaved badly in this respect does not logically support the argument that it did not have the right to implement early bumps. [122] An important difference between placement by way of VE match and bump placements is that the bump placement involves “displacement” of another employee who has not volunteered to leave, as the incumbent in the VE matched position will have. As I have already noted, the parties agree that the employee who will be - 44 - displaced by a bump placement is also entitled to 130 working days’ notice that they will thus become redundant, and has the same right to “placement opportunities” as employees who receive notice that their permanent jobs will become redundant. The evidence before me is that incumbents of the jobs to which early bump placements were made only received their notice at or a short time before that the bump placement was said to have been implemented. As I have noted, the union’s unchallenged understanding of “displacement” is that after the displacing employee is placed in a position the incumbent of that position may still remain in the position during her or his notice period. Significantly, there is no suggestion that a bump placement can not occur until the end of the notice period of the employee who is “displaced.” [123] This understanding of “bump” as a process in which placement and displacement may occur at quite different times is significantly different from what may be found in other contexts, where “bump” and “displacement” imply that the departure of the “displaced” employee from his or her position will occur (subject perhaps to transitional requirements) at the same time as the arrival in it of the displacing employee. That was evidently the understanding in Toronto Hospital,16 the earliest of the hospital sector awards on which union counsel relied in her argument. [124] In addition to requiring notice of a certain length to affected employees of any “proposed” layoff or elimination of position, the collective agreement in that case required that notice of the same length be given to the union also. The award concluded that these notices could be given at the same time, and the notice periods could run concurrently. The giving of notice to the union triggered an obligation to establish, within two weeks, a joint union-management Redeployment Committee with a broad mandate to, among other things, “identify and propose possible alternatives to the proposed layoff(s) or elimination of position(s),” as well as reassignment and retraining options for affected employees. The agreement provided that employees given notice had the right to accept the layoff, to receive a separation allowance, to retire or to “displace” another employee with lesser seniority, but said that “an employee who 16 Toronto Hospital v. CUPE Local 1744 (Policy Grievance 29-94) (award dated June 10, 1997, Charney). - 45 - chooses to exercise the right to displace another employee with lesser seniority shall advise the hospital of his/her intention to do so and the position claimed within seven (7) days after receiving the notice of layoff.” The agreement expressly provided that “An employee so displaced shall be deemed to have been laid off and shall be entitled to notice.” [125] One of the issues in that case was whether the hospital could require an employee who had elected to displace another employee to move to the position claimed before the end of the displacing employee’s notice period. The award found that it could not. Explaining why an employee would have to give notice of an election to bump within seven days of receiving notice when the bump could not be effected until the end of that employee’s notice period, the award said that this was for the benefit of the employer because it could then give notice to the employee to be displaced of a displacement that could not actually be effected until the end of the displaced employee’s notice period: 17 In our view, this is a provision which acts to the benefit of the Hospital in that absent this seven (7) day time limit, an employee might wait until the conclusion of her six month notice period to advise the Hospital of her election to displace another employee. Were this provision to be removed from the collective agreement, there would appear to be no requirement that an employee electing to displace need advise of her decision prior to the conclusion of the notice period. In such a circumstance, the Hospital would be further delayed in implementing any change by having to wait until the conclusion of the notice period of the employee to be displaced, so that the first employee would in fact receive twelve months notice. Indeed, depending upon how many rounds of displacement occurred in the chain bumping process, the Hospital could be delayed by multiple periods of six months. Under Article 9.08 as we read the provision, the Hospital is able to serve six months notice of layoff to an employee to be displaced, shortly after it has been served on the first employee who has elected to displace, so that the notice periods can be served almost simultaneously. Apart from the limitation created by this implication of the displaced employee’s right to notice, the award also found that if the employer could effect bumps one week after giving notice that would render meaningless the mandate assigned to a Redeployment Committee that was to be constituted within two weeks after notice is given. It concluded that the provisions for a distinct notice to the union and for an ensuing 17 supra, note 16Error! Bookmark not defined., at pp. 20-21. - 46 - Redeployment Committee process carried with them the implication that the status quo would be maintained during the period of notice to which the union was entitled so that the committee could perform its function without the disruption that displacements of employees would cause. [126] Three of the subsequent hospital sector awards cited by union counsel interpreted CUPE collective agreements materially similar to the agreement interpreted in the Toronto Hospital award. In each case the arbitrator or arbitration board concluded that by agreeing to participate in the specified work of a Redeployment Committee and to provide the union with a notice of the layoffs co-extensive with the notice to employees, the employer had impliedly agreed to maintain the status quo during that notice period. One award18 concluded that this precluded an employer who proposed to eliminate then vacant full-time positions from having the work of those positions performed during the notice period by newly created part-time positions in another bargaining unit. Another award19 found that it did not require that the employer fill vacancies in the positions it proposed to eliminate if and only if the employer did not intend to have the work of those positions performed by other positions or third party contractors during the notice period. [127] In Kingston General Hospital,20 Arbitrator Burkett found that under a materially similar CUPE agreement the employer could reassign employees during the notice period, since the parties had agreed that a reassignment was not a layoff, but could not implement bumps during the union’s notice period. He concluded that the provisions for a Redeployment Committee impliedly contemplated that “employees will not be physically displaced nor will the positions they occupy be eliminated during the five month period during which the Redeployment Committee operates.”21 He quoted a passage from the Toronto Hospital award that found that the Redeployment Committee provisions impliedly required that the status quo be maintained. He noted that the 18 Re Kingston General Hospital v. CUPE Local 1974, (2002) 112 L.A.C., (4th) 104 (Devlin). 19 Sudbury Regional Hospital v. CUPE Local 1623, [2007] O.L.A.A. No. 183 (Burkett). 20 Kingston General Hospital v. CUPE Local 1947 (Notice of Elimination Grievance), [2012] O.L.A.A.. No. 179 (Burkett). 21 supra, note 20, ¶13. - 47 - language of these agreements had been renewed without substantial change on several occasions since the Toronto Hospital award, “thereby confirming” that the meaning of the agreement before him was “in accord with Toronto Hospital.” He then observed that 16. … this is not to say that employees who have received a notice of layoff are somehow relieved of the obligation under 9.09 (d) to “advise the Hospital of his or her intention (to displace) and the position claimed within seven (7) days after receiving the notice of layoff”. Nor is the Hospital prevented from serving the incumbent in the position claimed with notice of layoff at that time. However, the affected employees are entitled to remain in their positions for the duration of the five month notice period pending the deliberations of the Redeployment Committee. The award makes no reference to the impact of the displaced employee’s right to prior notice on the timing of a displacement, or to the above-quoted observations in Toronto Hospital in that regard. [128] Toronto East General Hospital 22 is the most recent of the hospital sector awards cited by union counsel. It concerned collective agreement language that is different from what the prior CUPE awards considered and involved a different trade union. The employer there argued that because the provision that required the hospital to meet with the union to discuss a layoff of which it had given notice did not expressly require a joint committee with a mandate to come up with ways of avoiding the layoff, the rationale in the CUPE awards did not apply. Arbitrator Stephens responded as follows: 34 There is no question that the CUPE collective agreement contains a more precise and detailed description of the mandate of the “Redeployment Committee.” However, one of the key points in the CUPE line of cases is that affected employees should not be displaced prior to the end of the union notice period, since to do otherwise would interfere with the work of the joint committee in considering and agreeing upon ways to avoid or reduce the impact of the layoffs. This is, in my view, an appropriate conclusion. The question is whether Burkett's logic is application [sic] to the language before me, particularly given the more specific language used to describe the role of the Redeployment Committee, in comparison to the language describing the joint process in Art. 10.08 and 10.09 of the ONA collective agreement. 35 In my view, the key issue is not the level of detail, but whether the work envisioned is of sufficient importance that it is likely the parties intended one of the reasons for the notice to the union was to provide a period during which the parties could work without the pressures of disruptive changes in the workplace. I analyze this question from the perspective that employees can be severely impacted by layoffs, and consultative provisions of this type should not be read narrowly, but should be read in such as a way as to give appropriate scope to any joint process that 22 Toronto East General Hospital v. ONA (Lay-Off Procedure Grievance), [2012] O.L.A.A. No. 288 (Stephens). - 48 - serves the purpose of finding means to reduce or avoid the layoff of employees and the elimination of positions. 36 I do not see the joint meeting described in the ONA collective agreement as a pro forma event, restricted to a meeting to hear the employer's plans. … Clearly the intent of the joint meetings is to consider and, ideally, reach agreement on initiatives that would reduce the number of employees ultimately laid off, prevent the elimination of existing positions, or otherwise cushion the blow for employees who might be affected. 37 I also note that the language refers to five months notice to the union of the “proposed” layoff or elimination of a position. This description, I think, sets the context for the joint process, in that the notice indicates the employer has reached the point where it is forced to consider the layoff of employees and or the elimination of positions. The language automatically triggers the joint meetings, and describes in general terms a process that can ultimately lead to agreements with respect to the actual details of implementation. If the “proposed” layoffs could proceed apace before the parties have met and engaged in the joint process contemplated by the collective agreement, the purpose of the joint meetings between the parties would be vitiated, and the 5-month advance notice rendered meaningless. 38 Taking all of these factors into consideration, and incorporating the general observation that layoffs raise significant and vital issues for the affected employees, it is my view that, as with the collective agreements in the CUPE line of case [sic], the parties to this collective agreement intended that the primary reason for notice to the union is to give sufficient advance warning of a possible layoff such as to permit meaningful joint discussions. In other words, my conclusion is that the collective agreement requires a fair opportunity for the parties to engage in an important and meaningful consultative process. In addition, it is my conclusion that the notice to the union is intended to facilitate the discussions by preserving stability in the workplace while the parties meet to review the factors' surrounding the layoffs and to consider possible joint initiatives with respect to the implementation of the layoffs. 39 That being the case, I find, as did Arbitrator Burkett in KGH, that the employer cannot implement, nor can employees consent to, displacements during the union notice period, since to permit displacement could lead to the involuntarily displacement of employees and the loss of positions, thus undermining the purpose of the union notice and the joint process. [129] After noting that the CUPE agreements established a Redeployment Committee with a mandate to “identify and propose possible alternatives to the proposed layoffs or elimination of positions,” employer counsel said this in his written submissions: 84. That language obviously is not in the collective agreement before you. The only reference to discussions is in Article 6.03(c) which provides simply that at least 20 working days in advance of giving the employees notice, the Employer and the Union will have meaningful discussion and the Employer will provide the Union Executive with certain information. Beyond that, the only other obligation is in subsection (d) for the Employer to provide the Union with bi-monthly reports with specific information. The reference to “meaningful discussion” cannot be equated to the comprehensive language set out in the other hospital collective agreements with respect to a Redeployment Committee with a specific mandate to identify and propose possible alternatives to the proposed layoffs or elimination of positions. - 49 - [130] My own analysis begins with the observation that Article 6.03(c) is not the only provision of the parties’ collective agreement that refers to discussions. Article 6.03(a) requires discussion, as does “meeting with the intent of reaching agreement in good faith” as required by Article 6.02. Under Article 6.03(a) discussions must begin as soon as possible after the employer begins planning an Org/Tech change, before it is necessarily committed to effecting such a change in any particular way, before layoffs are anything more than a possibility and certainly before planning is sufficiently advanced that the employer can identify with particularity the individuals whose jobs it proposes to eliminate. The employer’s obligation under Article 6.02 to meet and negotiate about provisions that might ameliorate the effect of change on employees does not arise only after specific employees are given notice of layoff – it arises when the union asks, which it might very well do after it learns of the employer’s intention to engage in planning of a change. [131] In short, the first and most striking difference between the language considered in the hospital sector awards and the language in the parties’ collective agreement here is that here the union’s entitlement to notice, information and joint discussion clearly begins earlier than the time when employees receive notice of layoff, and perhaps much earlier in some circumstances, having regard to the very broad reach that I have found Article 6.03(a) has. [132] The next difference, which may be related to the first, is that there is no distinct period of advance notice of layoff to which the union is entitled, as there was in the hospital sector cases. Here, the union’s advance notice entitlement is to notice of the giving of notice of layoff to employees. This is coupled with an entitlement to information about the layoff and who it is likely to affect. The obvious purpose of this notice requirement is to permit a period of discussions about ameliorating the effects on employees of the intended layoffs before any further steps are taken in that regard. Here, the parties specifically agreed that that period would be 20 working days. [133] These parties also expressly agreed that as opportunities arise during the affected employees’ notice periods the employer can select the placement option for each - 50 - employee “on information available at the time.” Apart altogether from when the selection can be implemented, agreement that the selection may be made with the finality implicit in the words “on information available at the time” seems inconsistent with an intention that the status quo be frozen during the affected employees’ notice periods. [134] The intention found in the Toronto East General Hospital award was that the employer could not implement, and employees could not consent to, displacements during the union notice period. Here, however, the union agrees that a VE match placement, which involves a displacement consented to by the displaced employee but not necessarily by the displacing employee, can be implemented during the displacing employee’s notice period. This, again, seems inconsistent with an intention that the status quo be frozen during the affected employees’ notice periods. [135] Finally, there is the parties’ notion that a “displacement of a less senior bargaining unit member (bump)” can occur for the displacing employee without the less senior employee’s being displaced from his or her position at the same time. This is, at least, a reason not to suppose that these parties intended something that other parties with different understanding of displacement might have intended by language that is different in that as well as other respects. [136] For these reasons I find that the language of this collective agreement leaves to the employer’s discretion whether a bump placement properly selected under the placement selection language of Article 6.05(b) will be implemented prior to the end of the placed employee’s notice period. Interpreted in light of what the parties do agree about it, the other provisions of the agreement and my findings with respect to what Article 6.03(a) requires, I do not find any necessary implication that a properly selected bump placement cannot be implemented before the end of the placed employee’s notice period. [137] As a matter of general law, extrinsic evidence may be used both to identify and to resolve ambiguities in the language of written agreements. On this foundation, arbitral jurisprudence recognizes that past practice in the administration of a collective - 51 - agreement may serve as an aid to its interpretation in some circumstances. That arbitrators may sometimes rely on past practice in this way seems sometimes to be misunderstood as requiring that things always be done as they have been done in the past. [138] Union counsel argued the evidence of past words and conduct that was put before me should persuade me that the language of the collective agreement requires that bump placements not be made until the end of the placed employee’s notice period. Employer counsel argued that it should not. Both counsel cited decisions and awards that considered the circumstances in which “past practice” may aid or govern collective agreement interpretation.23 A review of those decisions is unnecessary. It is enough to observe that I am not persuaded that there is a patent or latent ambiguity in any word or phrase in the collective agreement pertinent to this issue, other than ambiguities in “employee deemed redundant” and “displacement” in Article 6.05(b) that the parties’ shared understandings resolve. [139] I conclude that under the present language of this collective agreement if the employer properly concludes that a bump placement into a less senior employee’s position is the most suitable option for an employee who has received notice under Article 6.05(b), which it may do during the employee’s notice period “as opportunities 23 Decisions and awards referred to by union counsel included Re Int’l Ass’n of Machinists, Local 1740, and John Bertram & Sons Co. Ltd. (1967), 18 L.A.C. 362 (Weiler), Leitch Gold Mines Ltd v. Texas Gulf Sulphur Co., [1969] 1 ).R. 469 (Ont. H.C.), United Brotherhood of Carpenters and Joiners of America Local 579 v. Bradco Construction Ltd., (1993) 102 D.L.R. (4th) 402 (S.C.C.), Re Noranda Metal Industries, Fergus Division and International Brotherhood of Electrical Workers, Local 2345, (1983) 44 O.R. (2d) 529 (Ont. C.A.), and OPSEU v. Ministry of Natural Resources, 2003 CanLII 52916 (ON GSB) (Kirkwood). Text, decisions and awards referred to by employer counsel included Brown, Donald J. M. and David Beatty, Canadian Labour Arbitration, 3rd ed. (Aurora, Ont.: Canada Law Book), Ontario Power Generation and Society of Energy Professionals (2012) CanLII 90054 (ON LA) (Surdykowski), DHL Express (Canada) Ltd. and CAW-Canada, Local 4215, 144 and 4278 (2004), (2004) 124 L.A.C. (4th) 271 (Hamilton), Re Toronto (City) v. Toronto Civic Employees Union, Local 416 (2008) CanLII 63549 (ONLA) (Luborsky), Ontario Labour Board Employees’ Union and the Crown and Right of Ontario (Liquor Control Board of Ontario), (2001) CanLII 25807 (ON GSB) (Dissanayake), Re Hallmark Containers Ltd. and Canadian Paperworkers Union, Local 303 (1983), 8 L.A.C. (3d) 117 (Burkett), Re Canteen of Canada Ltd. and Retail Commercial and Industrial Union, Local 206 (1981), 1 L.A.C. (3d) 359 (Gorsky), Columbia Forest Products (Woods) and United Steelworkers, Local I-2995, 2011 CanLII 26531 (ON LA) (Surdykowski), Re Fort Erie Duty Free Shoppe Inc. and Ontario Liquor Boards Employees’ Union (1993) 32 C.L.A.S. 140 (Satterfield), and Wilson’s Truck Lines Ltd. and I.W.A., Loc 700 (1999) 80 L.A.C. (4th) 1 (Verity). - 52 - arise” and “based on information available at the time,” then it has a discretion whether that employee is placed in that position before the end of the placed employee’s notice period. I say this assuming, as I was told, that this “displacement” of a less senior employee is something that does not alone result in the less senior employee’s actually being displaced and thereby becoming involuntarily jobless before the end of that employee’s notice period. Estoppel [140] A number of authorities were cited with respect to estoppel.24 I will not review here the various ways in which the relevant principles have been described. Except in one respect to which I refer later in paragraph [146], there is no serious dispute about the applicable principles. For purposes of this decision I will describe them this way: a party to an agreement may be prevented from exercising contractual rights that it may be found to have as a matter of contract interpretation, if it has made a representation to the other party that is inconsistent with its acting in accordance with that interpretation and the party to whom the representation was made has acted in reliance on it in a way that will have been to its detriment if the representing party is 24 Decisions and awards referred to by union counsel included Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Professionals, [2011] 3 S.C.R. 616, Re United Electrical, Radio and Machine Workers, Local 537, and Canadian General Electric Co. Ltd. (1971) 22 L.A.C. 149 (D. L. Johnston), Canadian National Railway Co. et al. v. Beatty et al. (1982), 34 O.R. (2d) 385 (Ont. Div. Ct.), OPSEU v. Ministry of Community and Social Services, GSB No. 0513/86 (August 10, 1988, Barrett), OPSEU and Ministry of Health and Long-Term Care, 2007 CanLII 30448 (ON GSB) (Gray), Re Sklar-Peppler Inc. (Peppler Division) and International Woodworkers of America, (1992) 20 L.A.C. (3d) 413 (Knopf), Re Grey Bruce Regional Health Centre and OPSEU, Local 235 (1993), 35 L.A.C. (4th), 136 (McLaren), The Corporation of the City of London v. CUPE, Local 107 (Group Grievance No. 914-99), December 20, 2000 (Roberts), Re Dominion Controls Co. (Div. Babcock Industries Canada Inc.) and I.A.M. Local 1927, (1993) CLB 12131 (Levinson), and Re National Paper Goods and Graphic Communications International Union, Local 100-M (2001), 102 L.A.C. (4th ) (Abramsky). Decisions and awards referred to by employer counsel included Re Bell Canada and CEP (2011), 208 L.A.C. (4th ) 231 (M. Picher), Ontario Power Generation Inc. and Power Workers’ Union (CUPE Local 1000) (2011), 107 CLAS 74 (Davie), Re Rothman’s of Paul Mall Canada Ltd. and Bakery, Confectionary and Tobacco Workers’ International Union, Local 319T (1983), 12 L.A.C. (3d) 329 (M. Picher), Alcan Packaging Canada Ltd. and Graphic Communications International Union, Local 100, 2006 CanLII 22112 (ON LA) (Beck), Sears Canada Inc. and United Steelworkers, 2011 CanLII 72718 (ON LA) (Knopf), Amhil Enterprises and Workers United Ontario Council, 2012 CanLII 30632 (ON LA) (Slotnick), Tiercon Industries Inc. and U.N.I.T.E., Local 314 (2002), 112 L.A.C. (4th) 348 (Bendel), and Signature Aluminum Canada Inc. and United Steelworkers, Local 2784, 2008 CanLII 36514 (ON LA) (Randall). - 53 - permitted to act in a manner inconsistent with its representation. It is said that to support an estoppel the representation must have been made with the intention that the opposite party rely on it, but this requirement is generally satisfied if the opposite party’s acting in reliance on the representation is the objectively likely result of making it. Authorities sometimes describe the requisite representation as being that the representing party will not rely on its strict contractual rights, but an estoppel may also arise from a representation about what the representing party conceives its contractual rights to be. The requisite representation may arise from non-verbal as well as from verbal conduct, oral or written, but in any case the conduct must unambiguously represent what the relying party says it took it to mean. [141] It is well settled that labour arbitrators may adapt this doctrine to the labour relations context when adjudicating disputes about the application of a collective agreement. In a labour relations context the detriment to the relying party is generally said to be the loss of an opportunity to bargain into the collective agreement a provision that ensures or confirms what the other has represented. The opportunity to bargain for the renewal of a collective agreement with a strike or lockout as an available means of achieving it only arises periodically as a matter of law, so an estoppel of that sort generally precludes the representing party’s acting or relying on collective agreement rights that are inconsistent with its representation until the collective agreement comes to an end and the relying party regains the ability to negotiate the terms on which the collective agreement will be renewed. Of course, for estoppel to arise in this way negotiations for the renewal of the collective agreement must have been concluded (without substantial modification of the relevant provision) after the representation was made and before the party who made it acts or proposes to act in a manner inconsistent with it. [142] Employer counsel alleged at the outset that there had been an exchange about bumping during negotiations for the current collective agreement bargaining, during which the employer’s spokesperson, Mr. Simourd, had expressly told the union that it thought it could implement bump placements before the end of the notice period under the existing language. If such an exchange had occurred, there would be no basis for a - 54 - finding that the employer was estopped after the current collective agreement was made. [143] The version of this alleged exchange on which Mr. Simourd finally settled in his testimony is one in which he responded to an assertion that the employer could not make “placement decisions” before the end of the notice period by saying that “placement decisions” could be and had been made before then. That statement about when decisions could be made was not inconsistent with what the parties now agree was the past practice, nor is it inconsistent with the union’s understanding about when such decisions could be implemented: namely, that VE match and Priority placement decision could be implemented before the end of the notice period but bump placement decisions could not. Accordingly, Mr. Simourd’s claim that he got grudging agreement with his statement is entirely plausible, but jarringly at odds with his claim that, in the same exchange, Mr. Gaspar said that “if we did that they would grieve because that was not what we had done in the past.” I am not persuaded that Mr. Gaspar said that then. It is far more plausible, and I find, that Mr. Gaspar only said that after the collective agreement was concluded, during discussions in early 2012 when, I find, the employer first raised with the union the concept of implementing bumps before the end of the notice period. [144] I am not persuaded that anything said during the negotiation of the current agreement precludes the union’s estoppel claim. [145] If the union’s reliance interest related to its position-taking in bargaining, then the representations from which that reliance arose must necessarily predate the conclusion of bargaining. The evidence about what happened after the current agreement was concluded would only be relevant to the extent it assists in proof that there was a prior representation. That evidence does suggest that at some points after negotiations concluded some people on the management side thought the WSIB could not effect early bumps without the union’s agreement. A party may not be estopped by its thoughts, however, but only by its representations. - 55 - [146] I have found that the collective agreement gives the employer a discretion about whether a properly selected bump placement option will be implemented at or before the end of the placed employee’s notice period. Some awards on which union counsel relied seem to take the view that an employer’s having always exercised a discretion in a particular way will constitute a representation that it will always do so in future. I prefer the view expressed by Arbitrator Surdykowski in the following passage from one of his awards:25 A practice may or may not constitute a representation or a part of representation by conduct. The mere existence of even a lengthy practice may not by itself be sufficient to establish the basis for an estoppel. It is only when the employer has consistently applied the collective agreement in a way which is patently inconsistent with the words of the applicable provisions and the union has relied on that practice by not seeking to have the wording of the collective bargaining provision changed to reflect the actual practice in the workplace, the employer may be estopped from unilaterally altering its practice in that respect without giving the union notice of its intention and then an opportunity to address the matter in collective bargaining. The onus is on the union to establish that it in fact relied on the employer’s representation by practice conduct to its detriment. Regardless of the length of a practice, the mere fact that the employer has chosen to exercise the management right in a particular way, or to apply a collective agreement provision in a way which is not patently inconsistent with the collective agreement, will not by itself freeze that practice or constitute a representation that the employer will not alter that practice. In order to engage the doctrine of estoppel in such circumstance there must also be a sufficiently clear and specific representation that the employer will not alter the practice, either in reliance on its strict legal rights under the collective agreement or otherwise, in circumstances where the union actually had and forsook an opportunity to bargain the matter in reliance on that representation. I do not accept the union’s argument that an estoppel arose from the mere fact that before the current collective agreement was concluded the employer had never implemented a bump placement before the end of the placed employee’s notice period. [147] When the parties negotiated the current collective agreement the Guidelines on which the union now relies contained the caveat that if anything in them conflicted with the collective agreement the latter would prevail. I agree with the employer that representations qualified in that way should not be the basis of an estoppel, which would cause them to prevail over the very thing which they expressly defer.26 I also 25 Ontario Power Generation and Society of Energy Professionals, 2012 CanLII 90054 (ON LA) at ¶101. 26 My conclusion is supported by Re Bell Canada and CEP (2011), 208 L.A.C. (4th ) 231 (M. Picher). - 56 - agree that Mr. Doppler’s representations in 2002 or 2003 were not clearly with reference to what the employer could do, but only what it would do on that occasion. [148] Then there is Mr. Goslin’s testimony about what Mr. Mikkelson said and did in 2005, which I have summarized in paragraph [99]. As I have already noted, the employer did not call Mr. Mikkelson as a witness, nor did it suggest that its having not called him was due to his having been beyond the reach of a summons. Although Mr. Goslin offered no notes of the conversation, I accept that on that occasion Mr. Mikkelson said what Mr. Goslin says he did, in the context in which Mr. Goslin says he did so. [149] Employer counsel contended that whatever Mr. Mikkelson may have said should not be treated as a representation by the employer because “Mr. Mikkelson was an HR business partner, and not a member of senior management responsible for the meaning of the collective agreement.” He argued that representations can only estop an employer if made “by management hierarchy who have some real responsibility for the meaning of the agreement as required by arbitrator Weiler in John Bertram.” [150] I take this to be a reference to the last sentence of the following passage from the John Bertram award:27 This question comes within the larger issue of the scope to be given to “past practice” in the interpretation and application of collective agreements. In effect the company has argued that the events described above constituted a precedent wherein the agreement was applied according to the meaning contended for by the company. Thus the arbitration board is bound to adopt the same meaning here. In order to evaluate this argument we must consider the reasons for, or purposes of, the use of “past practice”. There are two main bases for their relevance. The earlier situation may involve a representation, by one party (express or tacit), which is relied on by the other. The latter may change his position in such a way that it would not be harmed if the other were to change its position about the meaning of the agreement. The effect of such conduct is variously described as “promissory estoppel” or “waiver”, and precludes repudiation of the representation if, and to the extent that, the party which has relied on it would suffer harm from steps taken prior to repudiation. The fairness of such a general doctrine is obvious but, as we have seen earlier, it is not applicable here. First, the union made no representation to the effect it agreed with the company's decision and, on the contrary, explicitly rejected it. Second, the company's position has not been changed to its detriment since any monetary award would 27 (1967) 18 L.A.C. 362 at pp. 367-368. - 57 - relate only to Miss Greenwood about whose claim the company was given timely notice. A second use of “past practice” is quite different and occurs even where there is no detrimental reliance. If a provision in an agreement, as applied to a labour relations problem is ambiguous in its requirements, the arbitrator may utilize the conduct of the parties as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, as an aid to clarifying the ambiguity. The theory requires that there be conduct of either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct (and, inferentially, this interpretation) be acquiesced in by the other party. If these facts obtain, the arbitrator is justified in attributing this particular meaning to the ambiguous provision. The principal reason for this is that the best evidence of the meaning most consistent with the agreement is that mutually accepted by the parties. Such a doctrine, while useful, should be quite carefully employed. Indiscriminate recourse to past practice has been said to rigidify industrial relations at the plant level, or in the lower reaches of the grievance process. It does so by forcing higher management or union officials to prohibit (without their clearance) the settling of grievances in a sensible fashion, and a spirit of mutual accommodation, for fear of setting precedents which may plague either side in unforeseen ways in future arbitration decisions. A party should not be forced unnecessarily to run the risk of losing by its conduct its opportunity to have a neutral interpretation of the terms of the agreement which it bargained for. Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice. The reference to “members of the union or management hierarchy who have some real responsibility for the meaning of the agreement” appears in the award’s description of the conditions in which past practice may be an aid to resolving ambiguity, not in its description of estoppel. Further, the reference is to acquiescence by those at a certain level in a practice that, presumably, may emerge from the behaviour of those at a lower level, not to the level at which the practice is initiated. The passage does not purport to lay down any rule about the persons whose representations may form the basis of an estoppel. [151] Having said that, I agree (and the union concedes) that not every statement by someone on the employer side of the line between labour and management will, without more, be a representation on which an estoppel may be founded. Putting it in very - 58 - general terms, the representation must be one made by, or acquiesced in, someone with apparent authority to make it on behalf of the party allegedly estopped by it. [152] I heard no evidence about what actual or ostensible authority “HR business partners” had in 2005 to speak for the employer, either generally or on occasions such as the one about which Mr. Goslin testified. More importantly, I heard no evidence or suggestion that the union was on notice in 2005 of any limitation on Mr. Mikkelson’s authority to speak for the employer about matters pertinent to the negotiations in which he was then engaged on the employer’s behalf. Those were negotiations with respect to the terms of an agreement that would amend the collective agreement in its application to certain employees. They were not negotiations between a shop steward and a first line supervisor about how some employee’s grievance might be settled. Mr. Mikkelson’s representation about what the employer could or could not do was part of the rationale offered for a contractual term that he sought on the employer’s behalf. Parties to bargaining of this sort are entitled to assume, unless otherwise informed, that a rationale offered by a party’s spokesperson in bargaining is that party’s rationale. [153] Mr. Mikkelson concluded an agreement on the employer’s behalf that then had to be performed and complied with by others in, or acting on behalf of, management. Its terms were not a secret. Those terms would have to have come to the attention of Mr. Mikkelson’s superiors after the agreement was made if, indeed, they were not aware of them before the agreement was concluded. [154] Even in a climate in which the employer was more inclined than it may now be to give affected employees more than the rights and benefits already prescribed in the collective agreement, the terms of the 2005 Guelph closing agreement with respect to early bumps would have been very surprising to anyone who then thought differently than Mr. Mikkelson about whether the employer had the right to implement early bumps. Yet Mr. Jackson has no present recollection of the details of the agreement, which suggests that he did not find its terms surprising when they came to him “in the loop.” It is difficult to imagine that management surprised by a term of an agreement - 59 - made on its behalf would not have challenged the maker for an explanation of it, and equally difficult to imagine that that maker would not have recounted having given the union the explanation he did. Yet the employer did and said nothing to repudiate either Mr. Mikkelson’s representation or the evident implication of his having sought the term to which the parties agreed. [155] I am persuaded that, in all the circumstances, Mr. Mikkelson’s representation resulted in an estoppel that remains operative during the term of the current collective agreement that precluded and precludes the employer from implementing an early bump placement before the end of the notice period of the employee to be placed. [156] On this and the other issues addressed in this decision I remain seised with respect to remedy and any other issue the parties cannot now resolve concerning implementation of this decision. Dated at Toronto this 28th day of March 2014. Owen V. Gray, Vice-Chair