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HomeMy WebLinkAbout1996-1344A.Union.97-05-08 Decision OffTARIO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DC L'OffTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TtLEPHONE (41~) 32~-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (41fJ) 32fJ-13~ GSB # 1344A/96 OPSEU # 96U089 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - the Crown in Right of ontario (Ministry of Transportation) Employer BEFORE o V Gray Vice-Chair FOR THE G Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING January 23, 1997 February 25, 1997 ~. ~ Decision In late July 1996 the MmIstry of TransportatIon announced that It would be closmg a number of Its warehouses and eqUIpment repaIr garages The umon Immediately filed thIS grIevance dated July 29, 1996 The MmIstry IS m VIOlatIOn of AppendIx 14, spectfically but not exclUSIvely paragraphs 1 & 5, m the closure of Garages/Warehouses and the subsequent tendermg and/or contraetmg for the prOVISIOn of servIces. What was then AppendIX 14 IS now AppendIX 9 to the partIes' collectIve agreement. Although the grievance refers to both warehouses and garages, the union has smce abandoned the allegatIOn that an oblIgatIOn to make reasonable efforts arose under AppendIX 9 WIth respect to any Jobs or functIOns that were performed m the warehouses prIor to theIr closmg Most of the 145 people de- clared surplus as a result of the garage closmgs were mechamcs The umon says that the garage closmgs resulted in a transfer to the private sector of velucle re- pair functIOns previously performed by mechamcs at those garages, and that this triggered an oblIgatIOn under AppendIX 9 that the employer faIled to dIscharge. The pertinent portIOns of AppendIX 9 read as follows. The Government IS aware that Its restructurmg mItIatlVes over the next two fiscal years (1996/97, 1997/98) could have a sIgmficant effect on employees, some of whom have served for a lengthy perIod. Accordmgly commencmg WIth the ratmcatIOn of the collectIve agreement and endmg on December 31, 1998, the Employer undertakes the followmg' 1(a) The Employer will make reasonable efforts to ensure that where there IS a msposItIOn or any other transfer of bargammg umt func tions or jobs to the prIvate or broader pubhc sectors employees in the bargainmg umt are offered pOSItIOns WIth the new employer on terms and conmtIOns that are as close as possible to the then eXIstmg terms and conmtlOns of employment of the employees m the bargammg umt, and, where less than the full complement of employees is offered pOSItions, to ensure that offers are made on the baSIS of semority When an employee has been transferred to a new employer he/she will be deemed to have reSIgned and no other prOVISIOns of the collec - - 2 - tIve agreement will apply except for ArtIcle 53 or 78 (TermmatIOn Pay) (b) Where the salary of the job offered by the new employer IS less than 85% of the employee's current salary, or if the employee's service or seniorIty are not carrIed over-to the new employer, the employee may declme the offer In such a case, the employee may exerCIse the rights prescribed by Article 20 (Employment Stability) and/or paragraphs 2 to 5 of thIs letter The employee must elect whether or not to accept employment WIth the new employer wIthm three (3) days of receIVmg an offer In default of electIOn, the employee shall be deemed to have accepted the offer 5) Where an operatIon or part thereof IS bemg dIsposed of, and the em ployer has determmed that an opportumty for tenderIllg or bIddmg IS warranted, employees shall be gIVen the opportumty to submIt a ten der or bId on the same baSIS as others. Background The Mmlstry of TransportatIOn operated, and to a lesser and dlmmishmg extent still operates, a fleet of lIght and heavy vehIcles used m connectIOn WIth Its lughway maIntenance and related operatIOns UntIl July 1996 it employed mechamcs and related supervisory and support personnel at a number of ga- rages throughout the prOVInce to repaIr and maIntaIn those vehIcles and other eqUIpment. Those mmlstry employees dId not do all the needed repaIr work, however Even before the closings on whIch tills grIevance focuses, a substantial portIon of the needed repaIr work was contracted out to repaIr servIce prOVIders In the prIvate sector Tills was done on a case-by-case baSIS, as the need arose. Work mIght be contracted out because of the nature of the work: wIndsilleld re- paIr work, for example, was all contracted out. Work might be contracted out be- cause a prIvate supplIer was closer to the vehIcle when the need to repaIr It arose, or because the relevant mInIstry garage was already fully occupIed Each garage had a lIst of supplIers In Its area that had each gIven the mInIstry a standIng offer to perform work for It at speCIfied rates The foremen and aSSIS- tant foremen at the garages made deCISIOns about what work would be done at the garage and what work would be contracted out and to whom. On July 24, 1996, the mInIstry announced that It would close ItS repaIr garages ("dIstrIct garages") In Grlmsby, KIngston Ottawa, Cochrane, Sudbury, - . - 3 New Liskeard, Sault Ste Mane, Kenora, Owen Sound and DownsvIew RepaIr operations were to be consolIdated mto five regIOnal centres Four of those cen- tres would contmue to have repaIr garages staffed with mlmstry personnel. Lon- don (Southwestern Region), Bancroft (Eastern Region), Northbay (Northern Re- gion) and Thunder Bay (Northwestern RegIOn) The fifth regional centre at DownsvleW retamed a Fleet Management ServIce but not a repaIr faCIlIty Per sonnel at the DownSVIew centre manage the outsourcmg of repaIr servIces for vehIcles wIthm Its JUrISdIctIOn. The memorandum m whIch the closmgs were announced provIded thIs ra tIOnale The mmistry s heavy eqUIpment fleet repaIr needs have been reduced sIgmfi cantly over the last few years. ThIS IS a result of the mcreased use of mamte- nance contractors, the mtroductIOn of cost effiCIencIes, unproved eqUIpment WIth better warrantIes, adoptIOn of mdustry standard preventative mamte- nance procedures, as well as a sizable reduction m some non-cntlcal highway mamtenance activitIes. In addItion, the mimstry will be contractmg out most summer and wmter mamtenance services over the next two to three years. As a result of these changes It is no longer necessary to retam the mmIstry's eqUIpment repaIr operatIOns at the current level. The reduced need for heavy velucle repaIr was slgmficant because the dIstnct garages tended to concentrate on heavy eqUIpment repaIr "AdoptIOn of mdustry standard preventatIve mamtenance procedures" refers to a mInIstry deCISIOn to mspect and overhaul ItS heavy eqUIpment less often than had been done m the past. In part, that deCISIOn was related to the expectatIOn that the eqUIpment would be sold, as the mmIstry pursues ItS plan to get out of the busmess of mam- taImng hIghway mfrastructure Itself and SImply contract for and mOnItor the performance of hIghway mamtenance by prIvate sector supplIers The mInIstry expected that Its goal of havmg all hIghway mamtenance contracted out would be achIeved at dIfferent times m dIfferent areas, as varIOUS contracts were nego- tiated WIth prIvate sector supplIers of hIghway mamtenance servIces over the two to three year perIOd referred to m the memorandum. The mInIstry's expectatIOn at the time of the deCISIOn to close the garages was when vehIcles that It contmued to use m the areas formerly served by the 4 closed garages requIred maIntenance and repaIrs, some of that work would be done In the remalmng regIOnal garages. The rest would be contracted out to by the regional facilIties to private sector supplIers from whom the mInIstry had standIng offers, In the same ad hoc manner as dIstrict garages had previously followed in contracting out work. Issues The umon recogmzes that there was and IS an overall, ongOIng reductIOn In the amount of repaIr and maIntenance work to be done on vehIcles operated by the mInIstry It maIntaInS, however that the effect of the clOSIngs was to transfer to prIvate sector suppliers at least some work that would otherwIse have been performed In the closed garages by bargaInIng UnIt employees WhIle tills mIght not be the case In areas of the prOVInce where lughway maIntenance had been fully contracted out, it would be so in other areas preVIously served by a closed garage. The UnIon says that tlus transfer of repaIr functIons to pnvate sector prOVIders amounts to a "dISpositIOn or any other transfer of bargaInIng umt functIons or Jobs" to the pnvate sector wlthm the meanIng of AppendIX 9, and trIggered an oblIgatIOn on the part of the mimstry to make reasonable ef- forts m accordance wIth that article. In Its openmg statement, the umon took the pOSItion that the employer should have Issued a request for proposals ("RFP") to pnvate sector supplIers of repaIr servIces, makmg lurIng a laId-off mInIstry mechamc a condItion of bemg or remaInIng approved as a supplIer of repaIr servIces to the mmIstry, or at least offermg such supphers some other form of encouragement to hIre laId-off mInIS- try mechamcs The umon noted that In December 1996, Management Board Secretariat ("MBS") had Issued an RFP for translatIOn and proofreadmg servIces, functIOns prevIOusly performed for the government both by ItS own employees and by out- SIde contractors. The RFP solICIted offers of servIces on an "as needed basIs", WIth no guarantee of any amount of work. It stated that hsts of approved supph- ers would be created from among proposals submItted The RFP IdentIfied - ~ - 5 evaluatIOn criterIa that would be used to determIne whether a proponent would be Included on the hst. One of those CrIteria was a "human resources factor" That factor was to reflect the number of bargaInIng umt employees to whom the proponent proposed to make Job offers If accepted onto the hst, the extent to whIch the Job offers would offer wages and benefits comparable to the employees' present salarIes and whether the proponent would make such offers on the basIs of semorIty (This factor was assIgned 2 percent of the pOInts on whIch evalua- tIon was to be based, wIth prICIng, past performance (three references from clI- ents), servIce level and experIence wIth the publIc sector beIng assIgned 40, 28, 20 and 10 percent, respectIvely) The umon offers this as eVIdence that an oblIga- tIOn to promote the hlrmg of laId-off workers has been recogmzed where there was, as here, a pre-exlstmg practIce of contractmg out SImIlar work and the suc cessful bIdders were not bemg gIven any guarantee of work. The employer's pOSItIOn IS that the deCISIOn about whether outsourcIng wIll proceed by way of tender, RFP or some other process IS an exerCIse of man- agement rIghts. In ItS VIew, It IS only after the form of a transactIon IS deter- mIned that the question arises whether reasonable efforts are reqUIred under Appendix 9 The employer says that there was no dISposItIOn here of the sort contemplated by AppendIX 9 and, m any event, there were no "reasonable ef- forts" of the sort contemplated by AppendIX 9 that the employer could have made m the CIrcumstances. It dIsputes the relevence of Management Board's RFP for translatlon and proof-readIng semces In the absence of any eVIdence that the prOVISIOns referred to by the umon actually resulted In any Job offer or offers The Evidence The partIes agreed that some documents could be entered mto eVIdence. Those documents mcluded the memorandum announcmg the closmgs, earher memoranda announcmg the mmIstry's mtentIOn to "move toward bemg a man ager of servIce prOVIders and away from dIrect servIce delIvery" and the RFP for translatIOn and proofreadmg servIces to WhIch I have already referred v- ~ - 6 - One of the documents entered was a portIOn of an EqUipment Manual last revIsed m 1993 The portIOn provIded deals wIth MobIle EqUipment RepaIr Or ders ("MERO's"), the documentatIOn used m the purchase of repaIr services from prIvate sector providers. It mdlcates that such servIces were to be purchased only from supplIers on a "lIst of approved pnvate garages m the area" that "WIll be supplIed by the Mmlstry EqUipment SupervIsor" to the dIstnct garage. Another document entered by the partIes IS entItled "Standmg Offers MERO Contractors Dec. 1 1995 through Nov 30, 1996" ThIS was saId to be a lIstmg of prIvate sector provIders m the Eastern ReglOn that servIced MmIstry vehIcles and eqUIpment, from whIch I mfer that these were "approved pnvate garages" There are dIstmct sets of lIsts for each of three locatlOns. Kmgston, Bancroft, and Ottawa. Each locatIOn's set of lIsts conSIsts of lIsts of supplIers or garuzed by the type of service reqUired. cars/statIOn wagons/mIruvans, lIght duty trucks up to 2 ton, 3 & 4 ton trucks, 4 to 8 ton trucks, graders, loaders, compo- nent repaIr, towmg and "other" Each supplIer's entry shows the showmg the terms on wmch each supplier was prepared to prOVide that type of serVIce. By and large, m each locatIon the same supplIer names appear on every list for that locatIOn. About 24 supplIers are lIsted for Kmgston, 14 for Bancroft and 52 for Ottawa. There was no eVidence about how or when these sets of lIsts were pre- pared, nor about whether they had been amended from time to time, eIther be- fore or after the Kmgston and Ottawa garages were closed Another document entered was entitled "GUIdelmes On The Transfer Of Employees With TheIr Jobs Or FunctIOn & Employee Blddmg" The document was prepared by MBS and IS dated August 1, 1996 Although It IS marked "draft," the employer agrees that the gmdelmes m It were being followed at the relevant time At page 7 of thIS document there IS reference to the use of "ven dors lIsts" e) Vendors List, Vendors of Record, Standing Agreements or Stand- ing Offers The prOVIsIOns ill the collective agreements WIth OPSEU and AMAPCEO that relate to reasonable efforts do not apply where servIces are acqul1'ed ~ - - 7 - through eXIstmg vendors hsts vendors of record, standIng agreements or standIng offers. "Reasonable efforts" may apply where new vendors ltsts, vendors of rec- ord, standing agreements or standing offers are created to effect the out sourcmg of an operatIOn, functIon or servIce of the government. In order to determme whether reasonable efforts apply, the respectIve vendors ltst, vendors of record, standmg agreement or standIng offer must be re- vIewed on a case-by-case basIs. In these, sItuatIOns, however reasonable efforts would only be trIggered when a mmIstry utilizes the vendor list, vendor of record, standing agreement or standIng offer AMAPCEO and OPSEU employees are entitled to qualtfy or regIster for mclusIOn on vendors lists on the same baSIS as other vendors. Also, these employees may tender for competItions for vendors of record or standIng agreements/offers on the same basIS as others subject to the rules on un farr advantage gamed through employment or confuct of interest. The relevant prOVISIons respectmg Employee BIddmg set out m these guIde- lmes apply The umon says thIs interpretatIOn is mcorrect. Part of the theory of Its case IS that the mmistry neIther made reasonable efforts nor even conSIdered makmg reasonable efforts m connectIOn WIth the transfer of repaIr functIOns to the Prl- vate sector because it had been mcorrectly advised, on the basis of tlus guidehne, that It did not have to do so. Beyond the entry of documents, the partIes were lrutIally m dIspute about wmch of them should lead eVidence first Ultimately, however, they agreed that the employer would lead eVidence first, WIthout preJudIce to Its pOSItion that the burden of proof that there had been a breach of the collective agreement re- mamed WIth the umon. The employer called two WItnesses' John Godm, RegIOnal Operations En gmeer for the Southwestern RegIOn, and Hugh Blame, head of fleet operatIOns The unIOn summonsed Joe HamIlton, who was an acting shop foreman at the DownSVlew garage before It closed and IS now an area eqUipment co-ordmator whose functIOn IS to arrange for the servmg of mmlstry vehIcles m a portIOn of the Central Region. Mr Godm was chaIr of the RegIOnal Engmeers CommIttee, wluch he saId had been tasked to reVIew garage operatIOns. He testIfied that the announce- ment m July 1996 of the closmg of garages and warehouses was the culmmatIOn ----- ~ - 8 of the commIttee's work. HIs testimony confirmed and elaborated on the ratlOn- ale set out in the announcement memorand urn and the other background facts recIted earlier I do not propose to reCIte his testimony in detaIl. Two aspects of it are worthy of note hIS testimony about the "vendors lIst" and rus testimony on the Issue of "reasonable efforts" Mr GrodIn was shown the "StandIng Offers MERO Contractors" lIsts for the Eastern Region. He saId he was not famIlIar WIth the detaIls of that docu- ment. He commented that for years the mInIstry had attempted to get good la- bour rates and parts dIscounts In the prIvate sector Rather than negotiate rates on a per repaIr baSIS, It had solICIted standIng offers, WIthout offermg any gual'- antee of work, In order to have pre-set rates He also commented that the "ven- dors lIst" of standing offers was "dynamIc," and that there could be a dlscusslOn about whether there actually was a "lIst" of vendors or Just "local knowledge" He added that the term "vendors lIst" mIght convey a particular meaning to pro- curement people, but that the mlmstry's approach was "less formal." He also tes- tified that after the clOSIngs, dIsplaced employees had the same OppOrtunIty as others to be added to local vendors' lIsts, and he believed that at least two had. AgaInst that and the other background mformatlOn, m rus exammatlOn- m-chIef Mr Grodin was asked whether the ReglOnal Engmeers CommIttee had conSIdered what was then AppendIX 14 at the trme of theIr decislOn to recom- mend garage closings. Contrary to the union's theory of the case (and ItS clOSIng submIsslOns on the eVidence), Mr GrodIn testIfied that the commIttee had con- SIdered AppendIX 14 and, partIcularly, had conSIdered whether there were any "reasonable efforts" that the mInIstry could possibly make. They antICIpated a drastic red uctlOn m fleet SIze, as well as a red uctlOn m the standard of mamte- nance to be met for what remaIned Area maIntenance contracts were bemg sought WIth respect to pnvate sector maIntenance of hIghways In geographIc ar- eas, whIch would elImInate the need for heavy eqUIpment m those areas The se- quence m whIch hIghway mamtenance work would be contracted out In dIfferent reglOns of the prOVInce had not yet been defined. It was lIkely that there would - 9 - be vIrtually no work left wlthm two to three years. It was dIfficult to predIct when and where work would be needed m the interIm, and of what sort. WIth respect to "reasonable efforts", Mr Grodm testified that the commIt- tee had concluded that It was "hard to think of anything meanmgful that would get any real results." He saId MBS was consulted as well. It was put to rum in cross-examination that as a result of that consultatIOn, rus understandmg was that AppendIx 14 (now 9) dId not apply m the CIrcumstances. He replIed "I'm not sure those are the rIght words, but yes." The umon's cross-exammatlon of Mr Grodm focused prImarIly on estab hshing that in the period after dIstrIct garages closed there must have been at least some areas of the prOVInce where the mlmstry contmued to use velucles that contmued to reqUlre servIce preVIously proVIded by one of the closed dIstrict garages. Mr Grodm conceded that tills could be so, and that some work that would preVIously have been done by mechanics m the garage mIght thereafter have been done m the prIvate sector Some work mIght also have been done at a regIOnal garage, however, or by a mechamc dIspatched to the scene. He also noted that there would have been areas where there were no vehIcles to be serv- Iced, as a result of contractmg out of hIghway mamtenance The Chatham area was offered as an example oftrus Mr Grodm was asked in cross-exammatIOn whether the commIttee con- SIdered a "varIable applIcatIOn of ArtIcle 14, that It mIght apply m one part of the provmce and not m the other," havmg regard to the varIabIlity m tlmmg of the contractmg out of hIghway mamtenance He answered "no," because of the mag- mtude of the Impact on the fleet and the short time frames on ImplementatlOn of contractmg out. Beyond that, lus testimony m chIef that It was "hard to thmk of anythmg meanmgful that would get any real results" was not dIrectly chal- lenged. No specIfic example was put to Mr Grodm of sometrung the mImstry could have done m Its dealmgs WIth prIvate sector repaIr servIce supplIers to meanmgfully promote theIr hIrmg of laId-off mmIstry mechamcs - 10 - Mr Blame testified about several matters Of partIcular note was hIS tes- timony about labour costs that the mlrnstry had rncurred for repaIrs, both in ItS own facilities and m dealmgs with private sector supplIers. These are costs lus section had tracked. He presented a document settmg out a companson of eqUlpment costs incurred in the perIod August to November, mclusIve, of 1995 WIth the correspondmg perIOd m 1996 ImmedIately after the garage closmgs. The followmg figures are extracted from that document. Kilometres MTO's own La Vendor Labour drIven bour Costs Charges Aug. to Nov 195 17,113,428 $2,429,042 $680,009 Aug. to Nov 196 15,888,480 $978,928 $733,750 The thrust of the testimony elICIted from Mr HamIlton by the Union was that the ministry stIll has vehicles in use in the Central regIOn, and that vehIcle repairs that would preVlously have been performed m the Downsview garage are now contracted out to the prIvate sector In cross-exammatIOn, he testified that before the garage was closed, 30 to 50 percent of the repaIr work on mInistry ve- hicles WIth wmch it was concerned was contracted out. He was asked about the lIst of approved vendors, wmch he would have used when he was acting foreman at the DownsVlew garage to select a contractor to perform needed work. He testI- fied that m selectmg a supplIer to do work there had been some oblIgatIon to en- sure that the work was spread around the vendors on the lIst. He also testified that there were 300 to 400 vendors on the lIst he used In re-exammatIOn he said that names were added to the list from time to tIme, after vendors contacted the mInistry, described theIr service and hourly rates and were used on a trIal baSIS. Analysis The umon dId not pursue the allegatIOn that there was a breach of para- graph 5 of AppendIX 9 The remammg allegatIOn IS that the employer breached paragraph 1 of appendIX 9 when It contracted out repaIr work that would for- merly have been performed by mirnstry mechamcs WIthout makmg any effort to ensure that those mechamcs were offered Jobs by contractors -- - 11 - The eVIdence does support a findmg that the cumulatwe effect of the mm- IStry'S dealings dUrIng the first four months after July 1996 was to transfer to the prIvate sector some work that would preVIously have been done m house The mInIstry's use of pnvate sector supplIers mcreased (m terms of labour cost) even as Its overall repaIr needs (in those same terms) dramatIcally decreased. The contractmg out dId not happen concurrently wIth the closmg of the garages, however, nor m a smgle transactIOn. the mInIstry's contractmg out thereafter was done as, when and where the need arose, as It had been before the closmgs Viewed m isolatIOn from the rest of the prOVISIOn m questIOn, the phrase "a disposItion or any other transfer of bargaining UnIt functIOns or Jobs to the pnvate or broader publIc sectors" seems broad enough to cover the government's purchases from the pnvate sector of servIces it had preVIOusly obtamed from its own employees. In ItS submissions, the union seemed to accept that In IdentIfymg dispOSI- tions to wmch AppendIX 9 applied, it would be necessary to dIstmgUlsh between private sector servIce purchases that resulted from the garage closmgs and pur- chases that would have been made even if the garages had not closed. It would have been dIfficult to distingUlsh in advance, or even when they occurred, wmch of the mInIstry's post-closure dealmgs with prIvate sector repaIr servIce supplIers mvolved a contracting out of work that would not have been contracted out anyway If the garages had remamed open, and wmch SImply re- flected a contmuatIOn of had gone on before the closmg There was certamly no attempt to do so m the hearmg The unIon's posItIOn was SImply that smce the employer had dIrected no effort toward contractors to "ensure" that any of the them made offers of employment to laId-off mInIstry mechamcs, Its demonstrat- mg that there must have been somethmg that amounted to "a dispOSItIOn or any other transfer of bargammg umt functIOns or Jobs to the pnvate or broader pub lIc sectors" was sufficIent to establIsh a breach of AppendIX 9 - - . 12 In what follows, I use the word "dISposItIOn" as shorthand for "a dISPOSI- tIOn or any other transfer of bargammg umt functIOns or Jobs to the private or broader publIc sectors." I do not thmk one can start WIth the premIse that for any occurrence to which the "disposItion" language bears applIcatIOn there must be some corre- spondmg effort that paragraph 1 of AppendIX 9 obliges the employer to make. Whatever CIrcumstances may amount to a "dispOSItion," the employer's oblIga tIOn to make efforts is qualIfied by the word "reasonable" The employer IS only oblIged to make such efforts as are "reasonable" m the CIrcumstances. The cnti- calIssue In determmmg whether the umon IS entitled to a remedy here IS not whether the CIrcumstances fit the "dISpOSItIOn" language, It IS whether there were efforts that were reasonable whtch the employer could have made m those circumstances to advance the objectives identified m the prOVISIOn. In partIcular, it IS whether there were reasonable efforts the employer could have made "to en- sure that employees in the bargaining umt are offered pOSItIOns WIth the new employer on terms and condItions that are as close as possible to the then eXIst- mg terms and condItions of employment of the employees m the bargammg umt, and, where less than the full complement of employees IS offered pOSItIOns, to en- sure that offers are made on the basis of semorIty " The parties agree that the words "employees in the bargaImng umt" are not to be read hterally The object IS not to secure offers of employment for every one of the employees m the bargammg umt. The object IS to secure offers of em- ployment for those whose employment WIth the government IS adversely affected by the "dIspOSItion" m questIOn. The partIes' havmg described the person from whom there are to be offers as "the new employer" suggests that the reference IS to the entIty to whom the "bargammg umt functIOns or Jobs" m Issue are actually transferred, the em- ployer of those who actually perform transferred functIOns or Jobs after the "dIS- pOSItion" occurs If the CIrcumstances reqUIre that reasonable efforts be dIrected to ensurmg that the ultimate transferee offers Jobs, It WIll obVIously be prudent, -.c.~ ._ -~ - 13 - and necessary m a tendermg sItuatIOn, for the employer to dIrect the same ef forts toward all possible transferees. The oblIgatIOn, however, IS to make such efforts as are reasonable to ensure that the ultimate transferee of bargammg umt functIOns or Jobs makes Job offers. The eVIdence contradIcts the umon's theory that the employer dId not even trunk about the Issue. Mr Grodm testified that the commIttee that recom mended the closmgs had consIdered what was then AppendIX 14 and, partICU- larly, had consIdered whether there were any "reasonable efforts" that they could pOSSIbly make. They had concluded that It was "hard to trunk of anytrung meamngful that would get any real results." It appears from that eVIdence that the committee asked Itself an appropriate questIOn. It seems to me that efforts which could not reasonably be expected to advance the objects contemplated by paragraph 1 of AppendIX 9 are not "reasonable efforts" that the employer IS obhged by that paragraph to make. The test IS an objective one, of course If there IS an objectively reasonable effort the employer could have made, the mere fact that the employer dId not trunk of It would not excuse ItS faIlure to make It. While It dId not have a dlstmct oblIgation to consult the umon at the time, the employer's faIlure to do so ex- posed It to the risk that the umon could later Identify an objectively reasonable effort that the employer had SImply overlooked and, consequently, faIled to make. It may be more costly to remedy such faIlures after the fact than to SImply consult WIth the umon as a matter of course Such a consultatIOn mIght also have narrowed the range of Issues that mIght later have been raIsed about the efforts that the employer ought reasonably to have made The Issue here IS not whether the employer acted prudently, however, It IS whether the employer faIled to dIscharge ItS oblIgatIOn to make reasonable efforts The umon bears the onus of proof on that issue. The fact that certam prOVISIOns were mcluded m the RFP for translatIOn and proofreadmg servIces IS not eVIdence that the employer recogmzed an oblIga tIon to the umon to mclude use the RFP process to qualIfy supplIers or mclude - 14 - those sorts of terms when It dIe', More Importantly, there IS no eVIdence that the InClUSIOn of those terms actually resulted m any Job offers to surplused employ- ees In that SItuatIOn. Accordmgly, the prOVIsions of that RFP do not constitute proof that there were "reasonable efforts" that the employer could have made 10 the CIrcumstances of tlus case. It IS hard to ImagIne what "reasonable efforts" would have had any rea- sonable prospect of provokIng Job offers on any sensible terms from contractors who nevertheless mIght not be engaged to do much, or any, repaIr work. The dIf- ficulty arises from the nature of the need to whIch contractIng out of repaIr work was the response. cntlcal aspects of those needs - what work WIll be reqUlred from the prIvate sector, and when and where the need WIll anse - were dIfficult to predIct. In clOSIng argument the umon made suggestIOns about what efforts the employer mIght have made. hmItIng approved vendors to those who hIred sur- plused ministry mecharncs, or wrItIng to all approved vendors urg10g them to hire surplused mecharncs WIthout offermg any guarantee of work for them to do However little It mIght have cost to wnte a letter urgIng repaIr servIce prOVIders to lure surplused mecharucs WIthout offer1Og any express IncentIve, there IS notlung In the eVIdence from which I can conclude that domg so would have Improved the laid-off mechamcs' prospects of a Job offer beyond what they were WIthout such a letter It IS dIfficult to assess what the effect mIght have been of hmIt10g ap- proved repaIr servIce prOVIders to those who would hIre a surplused mecharuc. It IS clear that there were far fewer surplused mechamcs than preVIously approved repaIr service prOVIders. Even If each of the surplused mecharncs were offered and accepted a Job on some terms by a dIfferent servIce prOVIder as a result of takIng that approach, the resultIng number of approved supplIers would have been a small fractIOn of what It had been. The supplIers on such a short lIst mIght very well not be able to prOVIde the geographIC coverage necessary to meet ~ - 15 the mInIstry's needs for servIce as, where and when they arose Moreover, gIVen the eVIdent uncertamtIes about when, where and to what extent the mInIstry would have servIce needs that It would turn to prIvate supplIers (as opposed to one of Its remammg regIOnal centres) to fill, and about how long there would con- tmue to be even contmgent needs for repaIr servIces in any gIven area, It IS hard to see how the prospect of berng on a much smaller hst of approved supplIers could be a sufficIent mcentIve for anyone supplIer to lure a surplused mechanIC. The greatest difficulty WIth the unIon's suggestions m closmg IS that they were not put to Mr Grodm in cross-examrnatIOn, as a challenge to lus mformed conclusIOn that there was nothmg meanmgful that could have been done m the CIrcumstances. The fact that the employer offiCIal famIliar WIth the facts could not think of a "reasonable effort" that the employer could make supports a con- clusIOn that there was none. HaVIng left Mr Grodm's testimony to that effect substantially unchallenged and uncontradIcted, the unIon has faIled to discharge the burden of proof It bears when allegmg that the employer breached the proVI SIOn m questIOn. Conclusion In VIew of state of the eVIdence before me, I accept the employer's submIS- SIOn that even If some of ItS purchases of repaIr servIces from the prIvate sector after the closmg of the dIstrIct garages amounted to "a dISposItIOn or any other transfer of bargaInIng UnIt functIOns or Jobs to the prIvate or broader publIc sec tors" for purposes of AppendIX 9, there were no "reasonable efforts" of the sort contemplated by AppendIX 9 that the employer could have made m the CIrcum- stances ThIS grievance IS therefore dIsmIssed. Dated at Toronto thIS 8th day of May, 1997