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HomeMy WebLinkAbout1997-0559UNION98_05_26 ONTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARKJ _II GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G IZ8 TELEPHONEITELEPHONE (416) 3215-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G IZ8 FACSIMILEITELECOPIE (416) 326-13r16 GSB # 0559/97 OPSEU # 97U065 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Umon Gnevance) Gnevor - and - The Crown In Right of Ontano (Mimstry of Consumer and CommerCial Relations) Employer BEFORE R. Jack Roberts Vice-Chair FOR THE G Leeb UNION Gnevance Officer Ontano Pubhc ServIce Employee Umon FOR THE D Holmes EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat FOR THE RJ DramJ INTERVENER Counsel Hicks Morley Hamilton Stewart Stone HEARING June 26,1997, November 12,1997, January 30, February 2,6,1998 I 1 AWARD I. IntroductIOn ThIs IS another "reasonable efforts case and one that reallv Illustrates the dlVerslty of CIrcumstances m whIch the Issue can anse In 1996, the pro~mcIal government created a non- umon agency the Acohol & Gammg Control CommIssIOn of Ontano (AGCO) wIth a statutory mandate to take over znter aIza certam functIOns performed by the emplover In 1997 after AGCO estabhshed Its own terms and condItIOns of employment, It entered mto ' reasonable ~fforts negotIatIOns WIth the employer At the outset of the negotiatIOns, AGCO announced that It would make Job offers to all affected emplovees The emplovees would be offered a comparable benefits package Most would be offered wages that were equal to or better than theIr current wages TheIr serVIce would also be recogmzed, 2 In the subsequent negotIatIOns, a few addItIOnal gams were made but they fell short of the expectatIOns of the UnIon. The UnIon then filed the gnevance leadmg to the present proceedmg For reasons whIch follow, the gnevance is allowed m part. II. Factual Background The peculIar CIrcumstances of thIS case are as follows In 1996, the Ontano government enacted BIll 75 the Alcohol, Gammg, and Chanty Fundmg PublIc Interest Act, S 0 1996, ch 26 ThIS Act mtroduced, znter alia a new agency called the Alcohol &- Gammg Control CommIssIOn of Ontano (AGCO) The agency was desIgned to take over certam lIcensmg and regulatory functIs.ms of the LIquor Llcensmg Board of Ontano (LLBO) and the Gammg Control CommIssIOn, whIch was then part of the emplover the Mlmstry of Consumer and CommercIal RelatIOns (MCCR) It was thought that AGCO would be able to perform these functIOns m a more effiCIent manner The takeover was set to comclde wIth the proclamatIOn of the Act. The government s plan to mtroduce AGCO affected the Jobs of a number of umomzed employees of the LLBO and the Gammg Control CommIssIOn, These emplovees belonged to four dIfferent umons In the LLBO most were members of the Ontano LIquor Board Employees Umon (OLBEU) As to the Gammg Control CommIssIOn, most of Its affected employees were - members of OPSEU the UnIon herem. There also were affected employees who were members . .., .) of two other umons, AMAPCIO and ALO AGCO was set up by the government as a non-umon agency Its Board of DIrectors dId not adopt any of the collectIve agreements of the four dIfferent umons Instead, It decIded that consultants should be emploved to help AGCO construct a wage and benefit package that, In Its vIew approxImated a "blend" of the wage and benefit packages of the affected employees under theIr respectIve collectIve agreements On July 23, 1997 CabInet Issued Orders-In-CouncIl approvIng thIS package-and prOVIdIng that all AGCO employees would become members of the PublIc ServIce PensIOn Plan. It was only after thIs that AGCO commenced reasonable efforts negotiatIOns WIth the LLBO and the GamIng Control CommIssIOn of MCCR regardmg the transfer of theIr regulatory functIOns and pOSItIOns The umon undoubtedly found thIS frustratmg, however AGCO was actmg wlthm ItS statutory mandate As dIscussed more fully later m thIs award, It was legalh entItled to act as If It were an outSIde employer, WIth no on-gomg connectIOn to the LLBO or the Gammg Control CommIssIOn of MCCR. The reahtv of course was not as clear-cut. At all relevant tImes, the day-to-da\ management of AGCO's affmrs was carned out bv Mr Duncan Brown, who held the tItle of ChIef ExecutIve Officer of AGCO Mr Brown, however was also the ExecutIve DIrector of the Gammg Control CommIsSIOn of MCCR, He wore two hats When he wore hIS AGCO hat, BIll 75 made hIm an outSIder free from any collectIve agreement. When he wore hIS MCCR hat, 4 however, he became an mSlder, subJect to inter alza, the reasonable efforts reqmrements of the OPSEU collectIve agreement. In fact, Mr Brown mIght have been expected to be a kev player for MeCR. As E}..ecutlye DIrector of the Gammg Control CommIssIOn, Mr Brown held ItS hIghest management posItIOn. In thIs capacIty he could have played a key role III attemptmg to satIsfy MCCR s reasonable efforts" oblIgatIOns dunng the transfer of the CommISSIOn s functIOns and posItIOns to AGCO ThIS, however, would have placed hIm m the posItIOn of negotlatmg wIth hImself because he also was AGCO s ChIef ExecutIve Officer It seems that, znter alza to aVOId creatmg a potentIal confhct-of-mterest, Mr Brown became the chIef negotIator for AGCO Ms Lvnn Gottschlmg, the Manager Employee RelatIOns, m the Human Resources Branch of MCCR, became the chIef negotIator for the employer MCCR. Ms ElIzabeth MCKnIght, who then was Management Board SecretarIat s Corporate Staff RelatIOns Officer advlsmg MCCR, also Jomed m the reasonable efforts" negotIatIOns on behalf of the employer Ms MCKnIght teStlfied that she was requested to do so because of her advIson posltlon and her conSIderable expenence m negotIatIOns Accordmg to Ms McKnIght, the reasonable efforts negotIatIOns began on August 5, 1997 At the negotlatmg meetmg, Mr Brown mformed Ms Gottschlmg and Ms MCKnIght that all affected employees would receIve Job offers from AGCO But for SI}.. employees, the Job offers would match dollar-for-dollar 100% of the eXlstmg salanes of the employees As to the SIX 5 who were under 100% Mr Brown said, they were "Just under 100% Generally, these were people who had been "red-cIrcled" at hIgher wage rates than those specIfied for theIr posItIOns at MCCR. Agco was unwIllmg to bear the expense of contmumg the "red-clrclmg " Mr Brown prOVIded Ms McKmght and Ms Gottschlmg wIth the Orders-In-CouncIl of July 23 1997, approvmg AGCO s wage and benefit package as well as Its pensIOn plan. The wage package mcluded 16 clasSIficatIOns, WIth salary ranges for each clasSIficatIOn The benefits package detailed coverage levels for lIfe and dependent lIfe msurance accIdental death & dIsabIlIty health msurance, dental msurance heanng aids, vacatIOn short term mcome protectIOn and, long term dIsabIlIty The penSIOn plan was desIgnated as the OntarIO PublIc SerVIce PenSIOn Plan As to human resources polIcIes, the terms and condItIOns of employment m the Order stated that "[a]dmmlstratIve polIcIes embodledm The Management Board DIrectIves and GUIdelInes other than as exempted m accordance WIth the Memorandum of Agreement between [MCCR] and the AGCO wIll be adopted," Ms McKnIght saId that at the tIme she could not make any comment upon the wage package She dId not have any mformatIOn about whIch employees would be slotted mto whIch classIficatIOns, and she dId not know how the SIX OPSEU claSSIficatIOns would merge mto the classIficatIOn svstem proposed by AGCO The benefits however, seemed equal to or greater than the benefits currently enJoved bv the affected employees The penSIOn plan also seemed equal to the plans they currentlv enjoyed. 6 Real1zmg, however that the umon would find It dIfficult to accept less than 100% salary offers for all affected OPSEU employees, Ms MCKnIght and Ms Gottschlmg began to explore wIth Mr Brown ways m whIch these salanes mIght be 'topped up perhaps by usmg an mcentlve or bonus system Mr Brown reJected these suggestIOns mSlstmg that AGCO was not mterested m changmg Its salary ranges He countered wIth a suggestIOn that MCCR pay the reqUIred salarv dIfferentIals In a meetmg wIth the umon Just pnor to thIs negotiatIOn, the umon had mformed Ms Mc1..mght and Ms Gottschlmg that other crucial Issues from Its pomt of VIew were semonty recogmtIOn and the provISIOn of an opportumty to reVIew AGCO s Job speCIficatIOns The two k MCCR negotIators put these Issues to Mr Brown, As to semonty Mr Brown mdlcated that AGCO would recogmze semonty for purposes of entltlement to vacatIon and benefits AGCO would also recogmze the serVIce of affected employees for all purposes He declmed, however, to provIde for reVIew anv pOSItIOn speCIficatIOns Mr Brown saId that AGCO dId not have Job speCIficatIOns but mstead used Job profiles whIch were broader m nature He agreed to prOVIde these for reVIew Mr Brown also mdlcated that AGCO mtended to adopt some of the personnel pol1cles and admmlstratlve procedures for excluded employees that were set forth m the OPS Manual of AdmmIstratIOn and Procedures He was unsure however whIch of these AGCO would adopt. " I 7 Shortly after thIS meetmg, on August 7 1997 Ms MCKnIght and Ms Gottschlmg reported the results to representatIves of the umon, As expected, the umon had several addItIOnal questlOns and concerns ThIs led Ms Gottschlmg to send Mr Brown the followmg memorandum, seekmg further mformatIOn from hIm pnor to theIr next negotIatmg meetmg August 8, 1997 Re MCCR Reasonable Efforts NegotIatIOns - OPSEU ClassIfied GCe Employees Dear Duncan Thank you for meetmg WIth Ehzabeth McKmght, MBS and me on Tuesday August 5th, to negotiate Job offers for MCCR s ClassIfied OPSEU staff cunenth employed by the GCC In our dIscussIOns you mdlcated that the AGCO was prepared to offer posltlOns to 100% of the OPSEU ClassIfied staff and that.those offers would be at theIr cunent salary WIth the GCC (except for those whose cunent salarv exceeded the maXImum of the range of the posItlton that thev would be offered) You mdlcated that those mdIVlduals would be offered a salary at the maXlmlm of the range of the pOSItIOn that they would be offered and that your understandmg was m all cases the offered salary was at least 85% of theIr cunent GCC salarv We have now had an opportumty to reVIew the mformatIOn provIded and find that, based on our above stated understandmg of the planned AGCO Job offers at least 2 mdlvIduals would be offered salanes that are less than 85% In order to successfully complete our reasonable efforts obhgatlOns wIth OPSEU we WIll reqmre the followmg mformatlOn as soon as possIble We must complete a thorough assessment pnor to our meetmg next week WIth the bargammg agent so that the Mimstry IS m a pOSItIOn to confirm to both OPSEU and MBS that the reasonable efforts oblIgatIOns have been met 1 CompletIOn of the amached lIst (Cunent GCC ClassIfied OPSEU staff and theIr cunent salanes have been shown to aSSIst m expedltmg the process Please provIde confirmatIOn that each mdlvIdual lIsted wlll be recelvmg a Job offer from ", the AGCO the pOSItIOn to be offered and the salary to be offered, [Not I 8 reproduced m thIS award.] 2 All terms and condItIOns (mcludmg any mformatIOn regardmg paid statutory hohdays, overtIme and travel pohcles, any termmatIOn or layoff pohcles etc) that WIll be offered at the AGCO to the ClassIfied OPSEU GCC employees We reqUIre thIS mformatIOn m order to compare the terms and condltltons offered at the AGCO to confirm that they are as close as possIble to theIr eXIstmg terms and condItIOns of employment. .., Any Job speCIficatIOns or Job profiles for the posItIOns that wIll be offered .J to the ClaSSIfied OPSEU GCC employees 4 A sample of the offer letter the AGCO plans to gIve to the ClaSSIfied OP-SEU GCC employees On August 11 1997 Mr Brown sent the followmg response MEMORANDUM TO Lynne Gottschlmg Manager Employee RelatIOns Human Resources BJanch, MCCR RE MCCR REASONABLE EFFORTS NEGOTIATIONS Furhter to your request of August 8 1997 for detaIls regardmg the AGCO s pOSItIOn relatIve to Job offers, the AGCO IS prepared to offer pOSItIOns to 100% of the OPSEU ClaSSIfied staff The AGCO IS prepared to mamtaIn current salanes for OPSEU ClaSSIfied staff up to the current OPS range maAImum rate or the AGCO range maXImum rate whIchever IS greater up to the AGCO level 7 where Job dutIes are SImIlar Enclosed for your reference are terms and condItIOns of emplovment (Schedule B) [not reproduced m thIS award] for the AGCO employees as approved by the AGCO Board, ThIS paper outlmes the AGCO benefit plan deSIgn and as noted mdlcates that the AGCO Human Resources pohcles WIll reflect OPS standards A detaIled handout regardmg terms and condItIOns of employment WIll be mcluded WIth the AGCO letter of offer for Electromc Gammg Enforcement Officers (EGEO's) and for GCC InvestIgators who WIll be movmg to an Inspector role As the AGCO WIll not begm operatIOns untIl early 1998 most Job dutIes WIll be SImIlar or IdentIcal to the role currently bemg performed untIl the AGCO IS operatIOnal Current Job descnptIOns formed the baSIS of the AGCO compensatIOn . 9 analysIs proJect. Several letters of offer formats eXISt. The maJonty of AGCO letters of offer wIll contam a reference to salary through the statement that "your current salary WIll be mamtamed" as the letters of offer are dated m August 1 997wlth an AGCO start date m February 1998 ThIs statement rather than an eAact salary IS reqUIred In most CIrcumstances to ensure any ment Increases apphed between August and February are consIdered, ThIs sample letter of offer format IS enclosed for your reference [Not reproduced m thIS award.] EAact salary rates wIll be mcluded when current pay alters A chart outlmmg the OPSEU ClassIfied staff person s name the antIcIpated AGCO salarv effectIve February, 1998 and AGCO S pOSItIon tltle IS enclosed as requested [Not reproduced m thIS award] Mr Brown proVIded the emplover WIth a I1st of all OPSEU classIfied employees showmg theIr antIcIpated AGCO salanes as of Februar) 1998 and a sample of AGCO s letter of offer He also proYlded a summary of AGCO's benefits package as well as certam pohcles and practIces estabhshed by AGCO re work-week and breaks the weanng ofumforms overtIme shIft - premlUm, standbv call-back, schedulmg SIck leave and YacatlOn credIts work on hol1davs and, partIcular travel and expense matters As to any remaInmg terms and condItIOns of employment, Mr Brown mdIcated that AGCO s Human Resources pol1cles would "reflect" the OPS standards preVIOusly referred to m the Order-In-CouncIl Shortly thereafter thIS mformatIOn was proVIded m confidence to representatIves of the umon, From the umon s pomt of VIew the mformatIOn dId not respond to all of ItS concerns As matters stood, SIX of the affected emplovees stIll would not receIve Job offers at 100% of theIr eXlstmg salanes Nmeteen employees would go mto claSSIficatIOns WIth maXImum salary levels below the maXImums m theIr current classIficatIOns SubstantIve senIOrltv nghts would be \... 10 el1mmated, Affected emplovees would lose theIr senIOnty nghts, znter aha m cases of transfer promotIOn, layoff recall redeployment or release from employment. There stIll was no guarantee from AGCO that It would adopt eXIstmg OPS standards for the remamder of Its terms and condItIOns of employment. The memorandum of agreement that the Order-m-CouncIl mdIcated mIght exempt AGCO from complymg wIth certam OPS Standards, was not made avaIlable On August 13 1997 there was another negotIatmg meetmg ThIs meetmg was attended by Ms Gottschlmg and Mr Brown. Ms McKmght dId not attend because she was away on vacatIOn. Another person from Management Board, Mr NeIl Campbell sat m on her behalf At thIS meetmg, the representatIves of the employer attempted to persuade Mr Brown to offer 100% of wages to the SIX affected employees who were scheduled 10 receIve less Mr Brown essentIally repl1ed that he was bound bv a deCISIOn of the AGCO Board on the matter and could not umlaterally reVIse AGCO's wage schedules to accomodate these emplovees He suggested that the emplover consIder makmg up the shortfall from ItS own resources Ms Gottschlmg and Mr Campbell replIed that the employer would encounter admmIstratIve dIfficultIes m makmg wage payments to those who were no longer Its employees Apparentlv the matter of the loss of substantIve semontv nghts was not raised. As to the ! lower wage maXImums m some of AGCO s classIficatIOns Mr Brown remmded the employer that m devIsmg ItS classIficatIOn structure AGCO decIded to blend together the wage structures \. of several bargammg umts and was not about to reVIse the structure soleh to accomodate the 11 mterests of OPSEU members Ms Gottschlmg and Mr Campbell decIded not to pursue thIS matter any further There were efforts made to locate the memorandum of agreement that the - ~ UnIon requested. It appeared, however that no such memorandum was or was hkely to be drafted. Subsequently, all agreed that thIS meant that under the Order-m-Councll all of the human resources pohcIes m the Management Board DIrectIves and GUldehnes would be adopted by AGCO The umon was not, however, proVIded wIth a COPy of these dIrectIves and gUIdelmes _ After thIs negohatmg meetmg, Mr Campbell mdlcated to the umon that m the employer's VIew It had satIsfied ItS reasonable efforts obhgatlOns On August 20 1997 AGCO sent out 188 Job offers to, znter aIza, all employees m the bargammg umt. All but eIght employees accepted the offers A short tIme later however Ms McKmght and Ms Gottschlmg restarted the employer s reasonable efforts negotiatIOns wIth AGCO Ms MCKnIght explamed that m hght of recent Junsprudence from the Gnevance Settlement Board on the Issue of reasonable efforts It was Eieemed prudent to attempt to use a financlalmcentlve to mduce AGCO to offer 100% of wages to the SIX emplovees who were scheduled to receIve less These negotiatIOns contmued over the course of the heanng m thIs matter and extended nght up to the date ofproc1amatIOn of BIll 75 m February 1998 III ConsIderatIOn of the SubmISSIOns of the Parties \, - 12 The submIssIOns of the partIes essentially ralsed the followmg Issues (1) DId the tlmmg of the commencement of the employer s reasonable efforts" negotiatIOns breach the provIsIOns of AppendIx 9, artIcle 1 (a) of the colleCtlve agreement, (2) DId the employer lead msuffiClent eVIdence of the posltlOns tak.en by AGCO m the negotlatlOns, (3) DId the employer s oblIgatIOn to make "reasonable efforts" reqUIre It to attempt to persuade AGCO to accept every term of the collectIve agreement, mcludmg recogmtlOn of the umon as bargammg agent, and Ifnot, what terms and condltlOns of employment were mcluded wlthm the scope of thIS obhgatIOn, and, (4) DId the employer satlsfv ItS "reasonable efforts obl1gatlOn m the CIrcumstances of the present case? I WIll consIder these Issues serzatim herembelow settmg forth m the dlscusslOn of each Issue the submISSIOns of both partIes as well as my- own resolutIOn of the matter (1) Timmg" Counsel for the umon, Mr Leeb, submItted that It was a breach of AppendIx 9, artIcle 1 (a) of the collectIve agreement, for the emplover to Walt untIl after Cabmet approved a number of AGCO s terms and condItIOns of employment before commencmg ItS "reasonable efforts" negotiatIOns wIth AGCO These terms and condItIOns of employment mcluded, inter aha, wages, benefits and classlficatlOns -- all, It was submItted, cntlcal determmatIOns that appeared to become engraved m stone" before the emplover even began to negotIate "- i 13 Refernng to Re Unzon Grievance and Management Board Secretarzat (1998) G S B No 1712/97 (Dlssanayake) Mr Leeb submItted that the employer's reasonable efforts oblIgatIOn began "as soon as the employer [deCIded] to embark on a dIvestment process Jd. at15 In thIs case, Mr Leeb went on, that was when the government deCIded to establIsh AGCO and transfer to It the bcensmg and regulatory functIons of MCCR s Gammg Control CommIssIOn Commencmg negotiatIOns at that pomt would have gIven MCCR a real opportumty to ensure development of wages benefits and claSSIficatIOns that were as close as pOSSIble to the then eXlstmg terms and condItIOns of employment" of the affected MCCR emplovees Counsel for the employer Ms Holmes submItted that It was ImpossIble for MCCR to engage m negotiatIOns WIth AGCO before Cabmet approval was obtamed m the form of an Order-m-CouncIl The Government of Ontano and not MCCR, deCIded to establIsh AGCO and passed legIslatIOn to that effect m the form of BIll 75 ThIS bIll Ms Holmes noted. granted AGCO s Board the umlateral nght, [s]ubJect to the approval of the LIeutenant Governor m CounCIl [I e the Cabmet], [to] establIsh Job categones salary ranges and terms and condItIOns of employment for ItS employees" Jd., s 7(2) MCCR was not even aware of the terms and condItIOns of employment establIshed bv AGCO s Board pursuant to thIS statutory nght untIl after Cabmet aspproval had been obtamed UntIl then, they were confidentIal Ms Holmes added that there was no eVIdence that when the partIes negotiated AppendIX 9 the Government of Ontano agreed to fetter ItS legIslatIve or executIve power "- Upon due conSIderatIOn of these submIssIOns, I find mescapable the conclUSIOn that the I 14 employer herem, MCCR, commenced Its "reasonable efforts" negotIatIOns WIth AGCO at the earlIest possIble moment. It was undoubtedly frustratmg for the umon suddenlY to be confronted wIth a new mdependent agency created by the legIslature for the specIfic purpose of takmg over functIOns that had been performed by members of the bargaInIng umt at MCCR. More frustratmg must have been the fact that m so domg, the legIslature granted the agency umlateral power to establIsh cntlcal terms and condItIOns of employment wIthout any requIrement to male reasonable efforts to ensure that they were as close as pOSSIble to those that eXIsted at MeCR. ThIs however seems to have been the prerogatIve of the legIslature I accept the submIsSIOn of Ms Holmes that there was no eVIdence that when the partIes negotIated AppendIX 9 of the collectIve agreement, the Government of Ontano agreed to fetter Its legIslatIve or executIve power SubJect to the ConstltutIOn, the government remamed free to create AGCO under BIll 75 and vest m thIS new agencv the powers that 11 saw fit to grant, mcludmg ItS s 7(2) power umlaterally to establIsh terms and condItIOns of emplovment wIthout reference to any reasonable efforts" oblIgatIOns to the affected employees AGCO was legally entItled to act as If It were an outSIde employer wIth no on-gomg connectIOn to the LLBO or the Gammg Control CommISSIon ofMCCR, (2) SufficIenCy of the Emplover's EVIdence "- Mr Leeb submItted on behalf of the umon that much of the employer s eVIdence , 15 mcludmg Its eVIdence of AGCO s responses m the negotIatIOns was hearsay and should not be relIed upon m determmmg the ments of the case He pomted out that the onlY wItness called by the employer was Ms McKmght. The only other eVIdence entered by the emplover was documentary m nature much of It from persons other than Ms McKnIght. WhIle Ms McKnIght mIght have been capable oftestlfymg about what she heard others say and that she receIved certam documents Mr Leeb went on, thIS eVIdence could not speak to the truth of what was SaId by Mr Brown on behalf of AGCO or recorded by AGCO m a paI1Icular document. When the employer lImIted Its eVldence m thIS way, Mr Leeb submItted, It depnved the umon of an opportUnIty to learn m cross-exammatIOn why AGCO made certam decIsIOns or mdeed. whether It actually understood what functIOns members of the bargaInmg umt performed at MCCR and properly matched them to Its salary levels Ms Holmes responded that the submISSIon of the UnIon focused upon the wrong questIon. The questIOn at Issue was whether MCCR made reasonable efforts not whether AGCO dId so As a result, she submItted, the matter of whv AGCO made certaIn deCISIOns or had certaIn understandIngs was Irrelevant. The eVIdence of Ms McKnIght, Ms Holmes SaId, showed that the employer was aware of AGCO s pOSItIOns, challenged them constantlY and when It became clear that AGCO was not gOIng to move on salary ranges or certam other terms and condItIOns of employment, went on to pursue Improvements In other areas I reahze that ArtIcle l(a) of AppendIX 9 hampers to a certam extent the UnIon s abIlIty to polIce the employer s reasonable efforts It does not give the UnIon a seat at the reasonable . 16 efforts bargaInIng table, even as an observer The umon must rely upon the employer to make "reasonable efforts on behalf of Its members dUrIng negotIatIOns WIth an outSIder And perhaps as troublIng, from the standpOInt of the umon, It must accept the emplover s rendItIOn of what went on In the negotIatIng seSSIOns, i. e what was achIevable and what was not. Gnevance proceedIngs allegIng a breach of the employer s reasonable efforts obhgatIOns however cannot be used to CIrcumvent thIS perceIved defiCIency In artIcle 1 (a) of AppendIX 9 They cannot be used as- a proxv for a umon seat at the bargaInIng table to permIt the umon to "whIttle away" at the outSIder s negotiatIng pOSItIOns In an attempt to demonstrate that the umon s own efforts mIght have resulted In a better deal The focus of the InqUIry IS upon the employer s reasonable efforts In such an InqUIry the questIOn of why AGCO adopted a partIcular negotIatIng pOSItIOn IS not nearly as relevant as whether the employer sought to find out why In attemptIng to negotiate around It. ThIS IS not to say that the employer need never call eVIdence from an outSIde employer In a "reasonable efforts" case If the umon were to challenge the credlbIht\ of the employer s WItnesses regardIng what went on m negotIatIOns, for Instance, It mIght well become necessarv to call corroboratIng eVIdence from the outSIder Here, however the credlblhtv of Ms McKmght was not challenged, nor was the credlbllltv of the documents filed by the employer Moreover, thIS eVIdence was "tracked" faIrly " closely In a subsequent narratIve of events by Mr R, DrmaJ counsel for AGCO AGCO had I 17 mtervenor status m thIS proceedmg, and Mr DrmaJ was present throughout the heanng He never mdlcated that he wIshed to mtroduce eVIdence to c1arifv Ms MCKnIght s recollectIOn of any of AGCO s negotiatmg poSItIOns In all these CIrcumstances I conclude that the employer's eVIdence of the pOSItIOns taken by AGCO was suffiCIent for purposes of thIs proceedmg (3) Scope of the Employer's Reasonable Efforts Obligation Mr Leeb essentIally submItted that the employer s reasonable efforts obl1gatIOn reqUlred it to act as If It were the umon. The employer was reqUlred to attempt to repl1cate the collective agreement, to try to persuade AGCO to accept every term of the collectIve agreement, mcludmg recogmtIOn of the umon as bargammg agent. ThiS oblIgatIOn was tacltlv recogmzed by the employer m thIS proceedmg, Mr Leeb argued, when It abandoned ItS apparent former pOSItIOn that under artIcle 1 (b) of AppendIx 9 ItS reasonable efforts obl1gatIOn was exhausted when It obtamed Job offers for employees at 85% of their current salanes He noted that the employer stIpulated that ItS reasonable efforts could not stop there, but had to contmue on to 100% of salary The stIpulatIOn was that an artIcle 1 (b) offer had nothmg to do WIth reasonable efforts under artIcle 1 (a) The oblIgatIOn to seek 100% Mr Leeb went on, dId not stop at salary It embraced every prOVISIOn of the collectIve agreement, mcludmg those dealmg WIth unIOn recogmtIOn. All of the provIsIOns of the collectIve agreement, It was submItted, constItuted "terms and condItIOns of 18 employment wIthm the meanmg of artIcle 1 (a) of AppendIx 9 Reference was also made to Management Board Secretanat s Draft Intenm Reasonable Efforts InstructIOns to Mlmstnes dated October 17 1997 These draft mstructIOns Mr Leeb noted provIded a Human Resources EvaluatIon Template to award pomts to the bIds of outsIders m the followmg categones (1) ComparatIve salanes (2) ComparatIve benefits (3) RecogmtIOn of serVIce and/or semonty for' (a)vacartIOn entltlement, (b )benefits entItlement. (c )promotIOn, (d)layoff and, (e )other eqUIvalent entItlements (5) Semonty based offers, (6) Access to gnevanc~ or complaint resolutIOn process (7) Paid vacatIon at 1 114- davs per month (8) Paid holIdavs at 11 or more per vear (9) Salary progressIOn based on ment; (10) Parental leave of 18 or more weeks and, (11) NotIce oftexmmatIon of6 months or more ThIS further mdIcated, Mr Leeb submItted, a recogmtIOn b\ the employer of the breadth of the terms and condItIOns of emplovment covered bv It reasonable efforts oblIgatIOn, Counsel for the employer Ms Holmes, responded that when the partIes negotIated artIcle 1 (a) of AppendIx 9 they could not have contemplated forcmg the employer to attempt to replrcate the entIre collectIve agreement, mcludmg unIOn recogmtIOn, m ItS reasonable efforts , negotIatIOns ThIS It was submItted, would amount to stnppmg the affected employees of theIr . 19 freedom to select theIr own trade umon once they were transferred to AGCO In makmg thIS submIsSIOn, Ms Holmes referred to several prOVISIOns of the Ontano Labour RelatIOns Act. mcludmg ss 2,25 53 66 and 70, that purported to preserve thIS freedom. As for mterpretmg the "terms and condItIOns of employment referred to m artIcle 1 (a) as embracmg the entlre remamder of the collectlye agreement. Ms Holmes argued that thIS would lead to an absurdIty In that case It was submItted, the employer would be bound to attempt to negotIate WIth AGCO matters whIch ObVIOUsly dId not applY to ItS cIrcumstances such as leave for umon actlYItv and IsolatIOn pay I tend to agree WIth the submISSIOn of the employer that when the partIes negotIated artIcle l(a) of AppendIX 9 they dId not mtend to mclude wIthm the scope of the expreSSIOn "terms and condItIOns of emplovment every smgle proVISIOn of the collectIve agreement. The questIOn then anses what dId they mtend to mclude? I belIeve that a strong suggestIOn as to the scope of thIS expreSSIOn IS gIVen m artIcle 1 (b) of AppendIX 9 ThIS prOYISIOn reads m pertment part, as follows 1 (b) Where the salary of the Job offered by the new employer IS less than elghty- five percent (85%) of the employee's current salarv, or If the emplovee s servIce and semonty are not camed oyer to the nev" employer, the employee may declme the offer I accept the stIpulatIOn of the partIes that the preCIse terms of thIS prOVIsIOn have nothmg to do '" WIth "reasonable efforts" under artIcle 1 (a) What seem to be relevant, however are the 20 categones that the partIes focused upon when they decIded what was a good offer l.e an offer that could not be declmed (1) salary, (2) serVIce and (3) semonty In thIS context, salary must be taken as mcludmg money wages and wage progressIOn, as well as eqUIvalents such as benefits, heu tIme vacatIOn entItlement, hohday pay parental leave and the hke I am conYll1ced that the same categones of employee protectIOn n salary serYICe and semonty -- were uppermost m the partIes mmds when they negotlated the reasonable efforts" prOVISIOns of artIcle lea) of AppendIx 9 of the agreement. It seems to me that these were the categones of protectIOn that, above all else the employer agreed to make reasonable eff0l1s to bnng as close as possIble to those currently afforded to affected emplovees In thIS connectIOn, I find reassunng the October 17,1997 draft mstructIOns of Management Board Secretanat regardmg reasonable efforts The maJontv of the eleyen human resources categones to be awarded pomts In thIS document had to do wIth the categones of salary SerYICe and semonty WhIle not conclUSIve, thIS IS a strong IndIcatIOn that the current tendency at Management Board Secretanat IS toward constrUIng the scope of the expreSSIOn 'terms and condItIOns of employment" In a SImIlar way It IS noteworthy too that In addItIOn to the categones of salary serVIce and semonty the draft InstructIOns also awarded pOInts to the categones of dIspute resolutIOn and Job secunty/stabIlItY ThIS IS not mconslstent WIth the InterpretatIOn of scope aITlved at In thIS award f '- I haye deCIded that uppermost In the partIes' mInds when they negotIated artIcle lea) of . 21 AppendIx 9 were the categones of salary, serVIce and semorIty It IS not unlIkely that the partIes also Intended to Include wIthIn the scope of "terms and condItIOns of emplovment' other categones of protectIOn m the collectlye agreement to be pursued, In the reasonable Judgment of the employer, as secondary matters to the core protectIOns of salary serVIce and semOrIty (4) The Reasonableness of the Employer's Efforts (a) Scope Mr Leeb submItted that the efforts of the employer were not reasonable In eIther scope or degree As to scope, Mr Leeb noted that from the begInmng the bulk of the efforts of the employer seemed narrowly focused upon obtaInIng salary protectIOn. The lImIted scope of protectIOn that AGCO was prepared to offer for the semonty and secondary nghts of affected employees was barely challenged. Moreover Mr Leeb argued, the employer faded to ralse WIth AGCO a salary-related Issue -- the lower salary maXImums and more compressed salary ranges beIng offered by AGCO The related Issue of benefits It was submItted, also went by the boards even though the umon calculated that the cost of AGCO s benefit package (18% of salary) was sIgmficantly less than that of the affected employees at MCCR (22% of salary) Counsel for the emplover Ms Holmes responded that In satlsfvmg ItS reasonable - ,- efforts oblIgatIOn under artIcle 1 (a) the employer was not reqUIred to negotIate the umon s 22 entIre wIsh lIst. The employer was free to adJust the scope of Its efforts to meet the CIrcumstances of each mdlvldual negotIatIOn. In support of thIs posItIOn. Ms Holmes referred to Minzstr} of Community and Soczal ServIces supra, m whIch V Ice Chair Kaplan Said, makmg reasonable efforts does not mean 'every effort or all efforts It means makmg efforts that are reasonable all thmgs conSIdered and that WIll, gIven that thIS IS a broadh worded clause of general applIcatIOn, depend upon partIcular CIrcumstances of mdIVldual cases" ld. at 18-19 Reference was also made to Re Unzon Grievance and lvflnzstry of Agnculture Food and Rural Affazrs (1997) G S B No 1747/96 (Gray) m whIch VIce Chair Gray saId Makmg reasonable efforts to achIeve multIple goals m bargammg mvolves exerclsmg Judgment about how and to what extent partIcular goals WIll be pursued The goal of ensunng that offers are made solely on the baSIS of semonty" may conflIct WIth the goal of ensunng that the greatest number of affected employees are offered employment on -favourable terms The mterests of the government and of the new emplover w1l1 also weIgh m the balance m determmmg what IS reasonable for the employer to pursue The obl1gatIOn to make reasonable efforts may not only permIt but reqUIre that the emplover moderate what It seeks WIth respect to the appl1catIOn of semonty m order to advance other legItImate mterests ld. at 8 ThIS obsevatIOn recogmzed, Ms Holmes submItted, that m the course of negotIatIOns the emplover had dIscretIOn to adJust the scope of ItS efforts m a real1stlc assessment of what was, and what was not, achIevable m the CIrcumstances of each case A SImIlar pomt was made, It was submItted, m Re Union Grievance and Management Board Secretanat (1998) G S B No 1712/97 (DIssanayake), where V Ice Chair DISSanayake \ i , ! . ')'" _J sald, "[l]t IS clear that, what IS reqUIred for compl1ance wIth the reasonable efforts obl1gatIOn m one case may not be reqUIred m another case ld. at 10 There, It was found that there was no need for the employer to make anv further reasonable efforts when the outsIde employer m ItS oral presentatIOn "made a clear and dIrect undertakmg (I) to offer employment to all affected employees m the bargammg Ul1lt and (2) that the terms and condItIOns of employment would be at least comparable to the eXlstmg terms and condItIOns Id., at 11 At that pomt, VIce Chalr - DIssanakake sald, "the goal of the reasonable efforts obl1gatIOn had been achleyed. ld Turnmg to the facts of the present case, Ms Holmes submItted that the employer sought to balance agamst each other the goals that It sought to pursue to obtam the best possIble Job offers for affected emplovees The employer recogmzed that AGCO was an agenc\ that was functIOnmg mdependentlv of the Crown m many ways As AGCO made ItS posItIOns known upon the terms and condItIOns of emplovment that It was prepared to offer Ms Holmes argued, the employer s negotIators consIstently challenged them. When It became clear that AGCO was not gomg to move on a partIcular Issue, they went on to pursue other Improvements These efforts were suffiCIently reasonable m scope It was submItted, to satlsfy thIS aspect of the employer s reasonable efforts oblIgatIOn, At the outset of mv conSIderatIOn of the Issue of scope I recogmze that m the CIrcumstances of thIS case the employer had l1ttle m the wa) ofbargammg power AGCO was a monopoly It was not a bIdder m a competltIOn WIth others to take over the l1censmg and r regulatorv functIOns of the Gammg Control CommIssIOn, It had an exclUSIve statutory mandate '" , . 24 to take over these functI9ns Part of AGCO s statutory mandate was to set Its own terms and condItIOns of employment wIthout any consIderatIOn of "reasonable efforts WhICh It dId before negotIatIOns WIth the employer even commenced. In short, from the start the deck was stacked m favour of AGCO The weakness of the employer s negotlatmg pOSItIOn, however dId not absolve It from makmg an attempt to mduce AGCO to offer to affected employees (1) salary (2) serVIce and (3) semonty protectIOn~as close as possIble to that provIded m the collectIve agreement. Revlewmg the eVIdence It can be seen that serVIce was already protected m AGCO s ImtIal offer The benefits package also was addressed, There were negotIatIOns WIth respect to the wage aspect of salary protectIOn. \\!hat was mIssmg, however was any negotIatIOn WIth respect to semonty protectIOn. The emplover sImply seemed to accept AGCO s pOSItIOn that semont\ would only be protected for the lImIted purpose of entItlement to vacatIOn and benefits That was not good enough to satISfy the employer s reasonable efforts oblIgatIOn Even If the employer antIcIpated stubborn reSIstance from AGCO as was lIkely here It stIll should have commenced negotIatIOns by znter alza, proposmg to AGCO the full range of semonty protectIOn provIded m the collectIve agreement. i If despIte the employer's efforts, AGCO refused to move on some or all aspects of , semonty protectIOn, all mIght not have been lost. The emplover could have expanded the scope / '-- of Its efforts by exercIsmg ItS reasonable Judgment to conSIder pursumg lesser goals such as Job . . . . 25 secunty/stabIlIty or a neutral dIspute resolutIOn mechanIsm sImIlar to that m the collectIve agreement. None of thIS was done As a result, It must be concluded that the scope of the employer s efforts dId not satIsfv ItS reasonable efforts oblIgatIOn (b) Degree As to degree Mr Leeb submItted that even WIth respect to salarv protectIOn, the employer s efforts fell short ofbemg reasonable The employer, he pomted out, mltlally deCIded that It could stop trymg to obtam protectIOn of 100% of salary for all affected employees so long as the fe'-" WIth less than 1 00% protectIOn receIved at least 85% of salary It was only after consldenng some recent Gnevance Settlement Board Junsprudence that the employer went back to the bargammg table on thIS Issue Eyen then, It was noted, the employer dId not offer am financlalmcentlve to AGCO to mduce It to bnng the salanes of all affected employees to the 100% level Turnmg to senIonty and secondary protectIOns for affected employees Mr Leeb submItted that there was no bargammg at all The employer merelv accepted AGCO s assertIOns that semonty would only be recognIzed for purposes of entItlement to vacatIOn and benefits As to secondarv protectIOns Mr Leeb went on, once It seemed that AGCO had deCIded to adopt the human resources polICIes establIshed m the OPS Manual of AdmInIstratIOn and Procedure the employer dropped the Issue It never made a Judgment whether to pursue any of the collectIve "- agreement s secondarv protectIOns .. . 26 The OPS polIcIes, Mr Leeb noted, were those that were applIed to non-UnIon employees m the publIc serVIce They dId not provIde for secondary protectIOns as close as possIble to those m the collectIve agreement. For example there was no dIspute resolutIOn procedure even approachmg the gnevance procedure m the collectIve agreement. They also dId not provIde eqUIvalent parental leave, a salary-related Issue The employer It was submItted, was oblIgated to bargam much more keen1\ than thIS Refernng to Re Unzon Grievance and Mznzstry of Transportatzon (1997) G S B No 1344/96 (Kaplan) Mr Leeb noted that the employer s reasonable efforts oblIgatIOn was regarded as an extremely Important one and one that cannot be tak.en lIghtly" ld. at 29 The oblIgatIOn was to be exerCIsed m a proactIve manner, he added, "and somethmg that makes no dIfference can hardly be Said to be consIstent WIth the emplover s proactIve oblIgatIOn to make reasonable efforts to help publIc servants find Jobs WIth terms and condItIOns of emplovment meetmg the threshold set out m AppendIX 9 " ld., at 30 In lme WIth thIS, Mr Leeb further contended, It was held m Re Lnzon Grzevance and Minzstry ofCommunzty and Social Services (1997) G S.B Nos 2779/96 141/97 (Kaplan) that a mlmmal effort, such as "holdmg a Job mformatIOn day wntmg letters, makmg telephone calls to follow-up and attendmg at meetmgs does not come close to complvmg WIth thIS provISIOn of the collectIve agreement." ld. at 18 Llk.ewIse It was submItted, the mInImal degree of effort by the employer m thIS case dId not come close to complvmg WIth thIS aspect of ItS reasonable efforts \, oblIgatIOn, I . p ~ 27 Ms Holmes submItted that the employer had exerted much more than the alleged mmlmal degree of effort m Its negotiatIOns wIth AGCO As to the wage aspect of salary she said, the employer succeeded m movmg AGCO away from ItS ongmal salary ranges AGCO also agreed to recogmze all ment mcreases to the salanes of affected emplovees that took place between the dates of Job offer and hIre With respect to those employees who would receIve less than 100% of wages, she said, the employer contmues to negotIate WIth AGCO to the present - day As to benefits Ms Holmes submItted that the umon placed too much emphasIs upon the comparatIve costs to the employer and AGCO What was Important was the level of benefits that the AGCO plan proVIded. The eVIdence, she submItted, showed that these benefits were eIther as close as pOSSIble or supenor to those m the current collectlv~ agreement. On the eVIdence, I am not prepared to find that the emplover should have mvested more effort mto Improvmg the benefits package offered bv AGCO I am prepared to find, however that the employer should have mvested more effort mto achlevmg 100% of salary for all affected employees It was apparent that up to the last day of heanng, the employer stIll had not offered a I financIal mcentIve to AGCO for the purpose of reachmg thIS goal As far as the eVIdence ~ , i showed, the employer had access to financIal resources that mIght have been used for thIS f I I. i I purpose (As an aSIde to thIS pomt, I note that both AGCO and the emplover are creatures of the i , r t f Crown In the end, theIr revenues and expendItures flow to and from a common purse) [ i l , , , I f I, I I . r .,. 28 TurnIng to the salary ranges and lower salary maxImums of AGCO I thInk It was a reasonable Judgment on the part of the employer to decIde not to pursue these Issues once they had been raised. It was common ground that AGCO's salary structure was establIshed by Its Board In a bona fide attempt to blend the structures of three separate collectIve agreements In lIght of thIS It was not unreasonable for the employer to conclude that It would be ImpossIble to Induce AGCO to throw over thIS structure In favour of adoptIng a salary structure as close as - possible to that In the OPSEU collectIve agreement. As to semontv I agree wIth Mr Leeb that the emplover made no effort at all The employer should have proposed to AGCO the full range of semonty protectIOn establIshed In the collectIve agreement. It should not have SImply accepted AGCO s posItIOn that It would recogmze semonty for very lImIted purposes Most Importantly It should have determIned whether It was reasonably able to proVIde InCentIves SUIted to Induce AGCO to adopt the collectIve agreement semonty protectIOns m whole or In part, Moreover In lIght of AGCO's reluctance to prOVIde full collectIve agreement protectIOn for salary, servIce and semonty the employer should have determIned whether It was reasonablY able to proVIde InCentIves that mIght aSSIst In pursumg partIcular secondarv goals such as Job secuntv/stabIlIty or neutral dIspute resolutIOn. It should not have SImply accepted AGCO s pOSItIOn that It would adopt the human resources polICIes In the OPS Manual of AdmmlstratIOn and Procedure , I " - 29 IV Conclusions Mv conclusIOns mav be summanzed as follows (1) The tlmmg of the commencement of negotIatIOns dId not breach the employer s reasonable efforts oblIgatIons, (2) The employer s eVIdence of the posltlons taken bv AGCO was suffiCIent for purposes of thIS proceedmg, (3) (a) Tne employer's reasonable efforts oblIgatIOn does not reqmre It to attempt to pursue WIth an outsIde employer every term of the collectIve agreement, mcludmg recogmtIOn of the umon as bargammg agent, (b) The employer IS pnmarIly obhgated to pursue the salary serVIce and semontv protectIOns offered by the collectIve agreement, It IS left to the employer s reasonable Judgment to consIder expandmg the scope of Its efforts to pursue m addItIOn partIcular secondary goals such as Job secuntv/stabIlIty or neutral dIspute resolutIOn, (4) (a) The employer herem breached ItS reasonable efforts oblIgatIOn by (1) Excludmg from the scope of Its efforts the full range of semonty protectIOn offered m the collectlve agreement, (11) Fallmg to exerCIse reasonable Judgment to conSIder expandmg the scope of Its efforts to mclude partIcular secondary protectIOns (ill) Not mvestmg a suffiCIent degree of effort mto achlevmg 100% of salary for all affected employees, (iv) Not mvestmg any degree of effort mto pursumg the full range of semonty protectIon offered m the collectIve agreement, and, (IV) Not mvestmg any degree of effort mto consldenng whether It was reasonably able to prOVIded mcentIves that mIght aSSIst m pursumg partIcular secondary protectIOns ~ . w 30 A declaratIOn of the breaches set forth m paragraph (4) above IS hereby entered, Pursuant to an agreement stIpulated by the partIes at the heanng, the matter IS remItted to them 111 thIS posture I wIll retam JunsdlctIOn pendmg negotIatIOns regardmg remedy Dated at Toronto Ontano thIS 26th day ofMav, 1998