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HomeMy WebLinkAbout2000-0447.Union Grievance.03-03-21 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 0447/00 1039/00 1042/00 1484/00 UNION# OOU072 00U090 00U130 01B041 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Mimstry of Commumty and SocIal ServIces) Employer BEFORE Deborah LeIghton Vice-Chair FOR THE UNION Richard Blair Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Leonard Marvy Semor Counsel Legal ServIces Branch Management Board Secretanat HEARING March 21 May 24 25 July 16 September 24 October 24 December 5 2001 February 7 July 29 September 9 2002 2 DECISION The umon gneved that the employer breached sectIOn 5 3 of AppendIx 18 of the collectIve agreement between the partIes In forwardIng RFP's (Request for Proposal) for three detentIOn centres - Genest DetentIOn Centre for Youth, ProJ ect Dare and Syl Apps Youth Centre The partIes agreed that In each case the reCeIVIng employers dId not recogmze semonty nghts for the purposes oflay-off and Job competItIOns The umon' s VIew was that thIS breached sectIOn 5 3 whIch provIdes For Employees electIng to be Included In the RFP The employer shall Include, In the RFP the mandatory reqUIrement that proponents must commIt In theIr proposal to make J ob offers to all of the IdentIfied classIfied OPSEU employees Such J ob offers shall be at a salary of at least 85% of the respectIve employee's weekly salary at the tIme of the Issuance of the RFP and recogmze the servIce and semonty In the Ontano PublIc ServIce (OPS) of each employee for the purpose of qualIficatIOn for vacatIOn, benefits (except pensIOn) layoff,Job competItIOn, severance and termInatIOn payments to the extent that they are provIded In the proponent's work place The employer took the posItIOn that employees were entItled to recogmtIOn of theIr OPS semonty for vacatIOn, benefits (except pensIOn) lay-off and J ob competItIOn, severance and termInatIOn payments only to the extent that they are provIded In the reCeIVIng employer's workplace The umon' s VIew was that the phrase "to the extent that they are provIded In the proponent's work place" modIfies only the last two Items on the lIst, I e severance and termInatIOn. On December 6 2000 the board rendered a decIsIOn that the qualIfYIng clause only applIed to the last two Items on the lIst, I e severance and termInatIOn payments The partIes asked for a further InterpretatIOn of sectIOn 5 3 and the board held on March 21 2001 After careful consIderatIOn of the submIssIOns and arguments of the partIes, I am persuaded that the partIes Intended to preserve the core protectIOns of semonty for lay-off and Job competItIOn. These core protectIOns as IdentIfied by the umon from the collectIve agreement are specIfic and clear 3 For Job competItIOns the Government must Include a reqUIrement In the RFP that a "relatIvely equal" clause be Included In the Job offer of the employment. That IS, all employees optIng Into the RFP would get aJob offer whIch Included as part of theIr condItIOns of employment a clause wIth language lIke ArtIcle 63 1 of the partIes' collectIve agreement. With regard to lay-off the umon recogmzed that ArtIcle 20 detaIls referred to what was reasonable for a large publIc employer but wanted the folloWIng basIc protectIOn Included In the RFP Employees who opt In would get a provIsIOn In theIr new contract the specIfied the most Jumor person IS laid off first - provIded the more semor person can do the work. BegInmng on March 21 2001 and contInuIng for the next eIghteen months the board heard from over thIrty-five wItnesses on the Issue of what remedy should be ordered. The IndIVIdual employees can be grouped Into three categones 1) those who opted In to the RFP and took aJob wIth the new employer 2) those who opted out of the RFP and chose to take enhanced severance and who dId not seek work wIth the new employer and 3) those who opted out, took enhanced severance and sought work and eIther got a posItIOn or not WIth the new proponent. It was the umon's posItIOn that the board should order that the dIvestment of ProJect Dare and Genest be overturned. ProJect Dare was dIvested to WendIgo Lake ExpedItIOns Inc on July 31 2000 Genest was dIvested to Anago (Non) ResIdentIal Resources Inc on July 17 2000 Syl Apps was dIvested to KInark ChIld and FamIly ServIces on November 30 2000 whIch was subsequently orgamzed and certIfied by OPSEU so the umon IS not seekIng for thIS dIvestment to be overturned. Those who dId not opt In should be permItted to re-elect as to whether or not they want to opt In or out. Anybody who chose to opt In would not receIve the enhanced severance Counsel noted that those who had opted out of the RFP have not yet receIved theIr severance It was the employer's posItIOn that a declaratIOn that a breach of the collectIve agreement has occurred IS sufficIent remedy In thIS case Counsel for the employer took the posItIOn that IndIVIdual remedIes were not JustIfied SInce there had been no connectIOn between the eVIdence made between the breach of the collectIve agreement and decIsIOns that were made eIther to opt In or out of the RFP 4 It was also the employer's posItIOn that If the board ordered reSCISSIOn It would be pumtIve to both known and unknown employees and that the board had no JunsdIctIOn to order thIS kInd of remedy THE EVIDENCE The partIes agreed to the folloWIng facts regardIng the dIvestment of ProJect Dare to WendIgo Lake ExpedItIOns Inc 1 There were eleven bargaInIng umt employees at the ProJect Dare Young Offenders FacIlIty FIve of these employees opted out of the RFP and SIX opted In. 2 Four of the opted out employees were rehIred by the successful proponent, WendIgo Lake ExpedItIOns Inc The remaInIng "opt out" retIred. 3 The successful proponent for Dare was announced on June ISth 2000 and the facIlIty was transferred on July 31 2000 4 Employees who opted In at Dare have not been provIded wIth OPS semonty for the purposes oflay-off and Job competItIOn. The polIcIes and procedures ofWendIgo regardIng semonty and lay-off are attached. S No lay-offs have taken place No one who prevIOusly worked at ProJect Dare testIfied at the heanng. As noted earlIer Syl Apps was dIvested to KInark ChIld and FamIly ServIces, whIch has been orgamzed and certIfied by OPSEU After the decIsIOn made by the board on March 21 2001 the employer was able to get KInark' s agreement to provIde employees who opted In to the RFP and were therefore workIng for KInark, to be gIven semonty for the purposes of Job competItIOn and lay-off as reqUIred under sectIOn S 3 of AppendIx 18 It was also noted on the record that when OPSEU and KInark complete negotIatIOns of theIr first collectIve agreement that It would be thIS collectIve agreement whIch takes precedence over the above noted agreement. Thus, there IS no remedy reqUIred for those who opted In to the RFP for KInark. Further there IS no remedy requested for those who opted out, receIved severance and were successful In obtaInIng aJob wIth the new proponent. Seventeen employees from Syl Apps testIfied at the heanng. As noted earlIer Genest was dIvested to Anago Resources Inc After the decIsIOn Into thIS matter on March 21 2001 the Mimstry also sought an agreement wIth Anago to provIde semonty based on OPS years of servIce for the purposes of Job competItIOn and lay-off and were successful In 5 gettIng that agreement dated May 22,2001 Thus, there IS no remedy reqUIred for employees of the Mimstry who opted In to Anago Those who opted out but won Jobs wIth the new employer are also protected. Seventeen employees from Genest testIfied at the heanng. EVIdence of the IndIVIduals who testIfied wIll be referred to as necessary In the reasons for the decIsIOn. THE UNION'S SUBMISSION Counsel for the umon, Mr Richard Blair submItted that after the board's first decIsIOn In thIS case, It was clear that the employer had breached the reqUIrement of sectIOn 5 3 by not ensunng that respectIve employees receIved semonty protectIOn for the purposes oflay-off and Job competItIOn. Counsel argued further that the protectIOn of thIS process IS a trust vested In the employer Because It IS a tendered system, the employer can agree or reJect vanous bIds from vanous proponents Thus, Mr Blair argued that there had been a breach of that trust. Counsel argued that at Genest and ProJect Dare the employer had contnbuted to the confusIOn about what should have been contaIned In the offer and that the employees should not have had to wonder whether or not they were gettIng protectIOn of semonty or not. Thus, they lost the nght to choose to opt In wIth the secunty of semonty protectIOn. WhIle InformatIOn at Genest and ProJect Dare was not clear counsel argued that the eVIdence showed that many IndIVIduals at Syl Apps were told that semonty for these purposes would not be In the new Job offer ThIS was consIstent WIth management's VIew that thIS semonty protectIOn was not Included In the RFP thIS was the posItIOn they ImtIally argued to the board. Thus, counsel argued In conclusIOn that the employees should not have been forced to decIde thIS way Counsel argued that the eVIdence ofMr Bob Eaton was clear and not contradIcted as head of MERC that the umon understood that semonty for lay-off and promotIOn was a mandatory mImmum reqUIrement. Mr Blair referred the board to the request for proposal language that used the IdentIcal 6 language from the collectIve agreement. However the tenders were accepted wIthout protectIOn of semonty for lay-off and competItIOn. It was only then that the umon realIzed the breach. Therefore, counsel was askIng on behalf of the umon, not for reSCISSIOn, but for an order that would reverse the work contracted out In breach of the collectIve agreement. Counsel argued that the board could "unscramble the egg here" SInce the umon sought to prevent the dIvestment before It was too late the gnevance beIng filed before dIvestment occurred. In Mr Blair's submIssIOn, the employer should not be allowed to benefit from the dIvestment In breach of the collectIve agreement. If thIS was allowed, the message would be clear that the collectIve agreement would only be as worthwhIle as a speedy heanng process With regard to ProJect Dare, whIch was dIvested to WendIgo on July 31 2001 Counsel argued that the SIX people that opted In to the RFP are stIll wIthout semonty protectIOn for the purposes of lay-off and promotIOn. Counsel argued that SInce the collectIve agreement reqUIred thIS In the RFP the dIvestment was an IllegalIty and therefore the dIvestment should be rescInded and If tendered agaIn must comply wIth AppendIx 18 Counsel argued that requestIng such remedy was not unusual In a contractIng out case Further the Crown had put Itself In the posItIOn by proceedIng wIth the dIvestment knowIng that there was a umon challenge to the tendenng process Counsel also remInded the board that the thIrd partIes In thIS case were ImtIally represented In the proceedIng. With regard to Genest, dIvested to Anago semonty protectIOn has now been gIven to those who opted In to the RFP But those who opted out dId so because there was no semonty guaranteed for the purposes oflay-off or Job competItIOn. Thus, the nght of beIng offered semonty protectIOn was lost. Thus, In Counsel's submIssIOn, the only thIng to do to remedy thIS IS to rescInd the dIvestment and do It correctly the second tIme In the alternatIve, counsel argued that SInce Anago IS prepared to recogmze semonty for the purposes oflay-off and Job promotIOn, IndIVIduals who opted out should be permItted to re-elect. 7 With regard to Syl Apps, whIch was dIvested to KInark, Counsel argued that employees at Syl Apps who sought InformatIOn regardIng whether or not semonty was Included In the Job offer were told clearly that there would be no semonty for lay-off and promotIOn by the employer Thus, people at Syl Apps clearly chose on the wrong InformatIOn as opposed to confused InformatIOn In the case of ProJect Dare and Genest. Counsel argued that thIS answer that there was no semonty protectIOn, was predIcated on the IntentIOn to breach the collectIve agreement. Counsel argued further that the tImIng of the dIvestment was mamfestly wrong SInce the employer went forward wIth the dIvestment SIX days before the decIsIOn of the board InterpretIng SectIOn 5 3 was rendered. So those who elected to opt out of the RFP should be permItted to re-elect. To the Issue that there may not be a Job opemng, counsel argued that OPS semonty should govern and the Mimstry must seek employment for those who elect In. In response to the employer's posItIOn that It IS not possIble to put a financIal value on the loss of semonty unless there IS loss of a J ob or a promotIOn, and to the argument that you cannot put a pnce on Job secunty counsel argued that these were false arguments from the employer Counsel submItted that the employees had the nghts under SectIOn 5 3 and also the nght to clearly know what was Included In the Job offer Counsel relIed on OPSEU (Berry et al.) and the Crown in Right of Ontario (MinistlY of Community & Social Services) No 607/85 (DIV Ct.) for the pnncIple that "It IS the common place of the law that the eXIstence of a nght ImplIes the eXIstence of a remedy" Counsel also relIed onRe Oil, Chemical andAtomic Workers and Polymer COlp Ltd (1959), 10 L.AC 51 (LaskIn) Canadian Union of Public Employees, Local 94 and the Corporation of the City of North York (1995) OLRB REP 1170 (McCormack) Re FanshGyt,e College and OPSEU (1991) 19 LAC (4th) 162 (Brent) Re Air Canada and Canadian Airline Employees Association (1974) 7 L AC (2d) 420 (Hub and) Counsel for the umon argued In summary that the Issue before the board IS what the effectIve remedy IS for the breach of the collectIve agreement. The employer was on notIce that there mIght be a 8 problem In the way the RFPs were tendered under sectIOn 5 3 of AppendIx 18 but they stIll proceeded to dIvest. Counsel argued that the Integnty of the collectIve agreement must be preserved wIth an effectIve remedy and argued further that the only effectIve remedy would be to rescInd the RFPs for Genest and ProJect Dare The only effectIve remedy for Syl Apps would be to allow anybody who opted out to have the abIlIty to re-elect. The new tenders would have to be consIstent WIth the provIsIOns of SectIOn 5 3 of AppendIx 18 and the rest of the collectIve agreement. THE EMPLOYER'S SUBMISSION Counsel for the employer Mr Len Marvy submItted that a declaratIOn of the breach of the collectIve agreement IS sufficIent remedy Counsel argued that IndIVIdual remedIes are not JustIfied In thIS case He argued that there was no connectIOn between the breach of the collectIve agreement and the decIsIOns made by IndIVIdual employees to elect In or out of the RFP He argued further that the umon has not shown a connectIOn between the breach of the collectIve agreement and the decIsIOns made by the IndIVIdual employees It was the board's decIsIOn that the employer's InterpretatIOn of SectIOn 5 3 was Incorrect and the declaratIOn of such IS sufficIent remedy Employer counsel submItted that the facts are undIsputed that In January the employees at the InstItutIOns In questIOn were notIfied of theIr nght to elect In or out of the RFPs The umon filed a complaInt wIth the Ontano Labour RelatIOns Board, whIch led to a memorandum of settlement between the partIes, whIch provIded, amongst other thIngs, for the employees to have an opportumty wIth further InformatIOn to make a second electIOn In March. Counsel noted that there was no complaInt raised by the umon about the Inadequacy of the RFP between January and March. Mr Marvy also acknowledged that the RFP does use the language of the collectIve agreement verbatIm as It IS found In SectIOn 5 3 of AppendIx 18 Counsel argued further that It was not untIl June that the employer realIzed the umon's posItIOn that the InterpretatIOn of 5 3 was Incorrect. Up untIl thIS pOInt counsel argued that some umon officIals were saYIng that there was no semonty protectIOn for 9 employees Thus, counsel argued there was no IntentIOn to depnve employees of theIr nghts under the collectIve agreement. Counsel pOInted out that the decIsIOn made by employees whether or not to take a posItIOn WIth the new employer or to opt out, IS always made before the new employer IS IdentIfied. It IS not clear before the new employer IS IdentIfied whether or not the work place of the new employer wIll be umomzed. Mr Marvy argued that the chOIce facIng employees was whether or not to take severance pay whIch ranged from approxImately thIrty to SIxty thousand dollars, dependIng on length of servIce of the employee, or a defimte Job from the new employer Counsel argued that the Job wIth the new employer would be secure employment gIven It IS well known In the young offender field that there IS no lack of work. Counsel argued further that the semonty protectIOn for lay-off and promotIOn dId not protect the new employees from beIng termInated for Just cause It IS only In a umomzed work settIng that there IS protectIOn of Just cause In Mr Marvy's submIssIOn. Thus, he argued that It was Job secunty that these employees wanted and unless they ended up In a umomzed work place they were not gOIng to have that secunty Counsel argued In conclusIOn that the employees could have been termInated wIth proper notIce If the new proponent was not umomzed. Counsel also noted that the Mimstry was clear wIth theIr employees that the RFP whIle requmng certaIn terms and condItIOn In the Job offer contaIned no guarantee that the terms and condItIOns would not change In the future In reVIeWIng the eVIdence of the IndIVIduals that testIfied before the board, counsel stated that the folloWIng factors generally affected the decIsIOns made 1) money 2) perceptIOn of gettIng a new Job Independent of the RFP 3) perceptIOn of gettIng a J ob wIth a new employer In a dIfferent career 4) age 5) consIderatIOn of who the new proponent mIght be 6) a desIre to go Into management; 7) famIly status, 8) whether or not some IndIVIduals already had a new Job Counsel argued that all of these factors affected some IndIVIduals In the decIsIOns they made whether or not to opt In or to opt out of the RFP Counsel also submItted that some IndIVIduals testIfied that they had made the correct 10 chOIce In optIng out. Others testIfied that havIng opted out that they stIll would have lIked to get a J ob wIth a new proponent but were not successful Mr Marvy argued further that the umon faIled to show that had the RFP clearly contaIned protectIOn for semonty for the purposes of lay-off and promotIOn, that people would have made dIfferent decIsIOns Thus, counsel argued that there IS no connectIOn between the employer's breach of the collectIve agreement and any of the IndIVIdual chOIces to opt In or to opt out. In the employer counsel's submIssIOn the work has been contracted out but there has been no loss to the umon because of the breach of the collectIve agreement. In counsel's submIssIOn reSCISSIOn and re-electIOn IS a umon remedy and not for IndIVIduals Counsel argued that the board must consIder that If there has been a breach of the contract, then the IndIVIduals must be put In the posItIOn that they would have been In wIthout the breach. If the board found that theIr decIsIOn was effected, then IndIVIduals should get compensatIOn. Counsel relIed on Board of School Trustees of School District # 75 (Mission) and Mission Teacher s Union (1997) 61 LAC (4th) 8 a BntIsh ColumbIa arbItratIOn case, whIch held that the umon must show actual loss In order to receIve damages to support the argument that no damages are warranted. Counsel argued that the sItuatIOn was sImIlar to a Job competItIOn where a mIstake has been made In the competItIOn, but It IS not so sIgmficant that It effects the outcome and therefore It IS not appropnate for It to be re-run. Counsel also cIted Re Miracle Food Mart Canada and the United Food and Commercial Workers International Union, Locals 175 and 633 (1994) 45 LAC (4th) 209 (DumoulIn), and Re Iron Ore Company of Canada and the United Steel Workers Local 5795 (1976) 13 LAC (2d) 131 (Newfoundland) where In a contractIng out case there was no proof that work or pay had been lost by employees, therefore damages were not appropnate Counsel also argued that reSCISSIOn would be pumtIve to known and unknown employees In counsel's submIssIOn thIS kInd of remedy IS not ratIOnally connected to the breach. Counsel argued further that the board dId not have JunsdIctIOn to make that kInd of order gIven that It would affect 11 thIrd partIes Counsel also argued In refernng to the North York case that thIS IS a Labour RelatIOns Board case and that that board has broader JunsdIctIOn than the Gnevance Settlement Board. Counsel also argued that In the North York case there was clear eVIdence that the CIty had engaged In repnsal agaInst the umon, and thus there was specIal eVIdence to support the order to stop contractIng out. In counsel's submIssIOn there are no CIrcumstances before the board here to JustIfy such an order Counsel noted that the employer has tned to comply wIth the terms of AppendIx 18 In summary counsel stated that the umon has faIled to show any loss because the factor - protectIOn of semonty for the purpose of lay-off and promotIOn - IS not sIgmficant because no lay-offs occur In the young offender field. And the lack of InfOrmatIOn dId not affect the employees' chOIce whether to opt In or out. In the alternatIve, Counsel argued that If the board does find that thIS mIsInformatIOn affected IndIVIdual's decIsIOns, the board must "find some value to put on It" Counsel argued that the board must put a dollar figure on the loss here because the partIes would not be able to negotIate damages THE UNION'S REPLY ARGUMENT Counsel for the umon argued that there IS nothIng In the Labour Relations Act or the Crown Employees Collective Bargaining Act that prevents the board from ordenng that the work be retendered, and that there are no cases before me that find that It would be an Inappropnate remedy Counsel argued further that the analogy of the competItIOn gnevance assIsts the umon' s argument because If a competItIOn gnevance IS sIgmficantly flawed, the appropnate order IS for the competItIOn to be re-run. That IS In effect, what the umon IS askIng the board to do In thIS case Umon counsel argued that the Crown IS askIng the board to examIne what each IndIVIdual employee decIded when they opted In or opted out of the RFP ThIS was a subJectIve decIsIOn, and It should not have been taInted by mIsInformatIOn. Counsel argued that It IS not appropnate now to speculate what IndIVIduals would have decIded had the InformatIOn been correct. 12 With regard to the Job secunty argument made by the employer umon counsel argued that semonty dId stand for somethIng, that semonty for lay-off and promotIOn does affect Job secunty Mr Blair argued that the employer counsel's argument that there would not be any lay-offs In the new proponents work place because there were not any In the Mimstry's work place IS not supportable Further IndIVIdual employees had reasonable concerns about theIr Job secunty In the new proponent's work place Thus, counsel for the umon argued that the eVIdence of the IndIVIduals was not Important or helpful to the board. Semonty was a sIgmficant factor and It would not be appropnate to conclude that there IS no connectIOn wIth the breach. In response to the argument that umon has not proven a loss, Mr Blair argued that the loss IS that the work should have been contracted out accordIng to the provIsIOns of AppendIx 18 Further the umon has the nght to show that entItlement and the umon employees deserved the nght to the work. REASONS FOR DECISION The collectIve agreement between the partIes contemplates contractIng out and dIvestment of government work. (ArtIcle 19) The partIes agreed to provIsIOns that would assIst those employees whose work was beIng pnvatIzed. The first provIsIOns to govern pnvatIzatIOn were In AppendIx 9 whIch has become known as the "reasonable efforts" provISIOn. AppendIx 18 IS the codIficatIOn of the employer's duty or oblIgatIOns for contractIng out publIc servIce work and In umon counsel's words, It IS the "pnce of dIvestIng" work. Young offenders facIlItIes were Included In Schedule A transfers - transfers through tendenng and are thus governed by sectIOn 5 of AppendIx 18 SectIOn 5 3 Includes the mandatory mImmum reqUIrements that must be contaIned In the Job offers of the new employer The process of dIvestment IS WIthIn the employer's control, the umon havIng no power over thIS process Job offers must be at a mImmum of 85% of the respectIve employee's weekly salary at the tIme the RFP IS Issued and OPS semonty must be recogmzed for the purpose of vacatIOn, benefits 13 (except penSIOn) lay-off, and Job competItIOn. Severance and termInatIOn payments are covered to the extent that they are provIded In the proponent's work place On December 6 2000 the board Interpreted sectIOn 5 3 findIng that semonty for the purposes of layoff and promotIOn must be Included In the RFP In tendered transfers Thus the employer breached the reqUIrement of the collectIve agreement In contractIng out the work at Genest, ProJect Dare, and Syl Apps The Issue before the board In thIS decIsIOn IS what remedy IS appropnate The employer submIts that there must be clear eVIdence from each IndIVIdual employee that the lack of semonty for the purposes oflay-off and promotIOn In the RFP resulted In the chOIce of optIng out. Without thIS clear eVIdentIary lInk there can be no proof of loss After carefully consIdenng thIS argument I am not persuaded that It IS valId. The loss to the bargaInIng umt members was the opportumty to make the decIsIOn to opt In or out of the RFP wIth the terms of employment, reqUIred by AppendIx 18 ThIS they dId not get. Thus they lost the opportumty and there must be some remedy for that loss, and for those who opted In to WendIgo who stIll do not have semonty for the purposes oflay-off and promotIOn. GIven that It IS the loss of the opportumty of makIng the decIsIOn to opt In or out on terms reqUIred by the collectIve agreement that must be compensated, It follows that the eVIdence of IndIVIduals who opted out IS of lIttle assIstance to the board. It IS not appropnate to speculate on what people mIght have decIded had the proper terms been Included. We can never know who mIght have chosen to opt In If the terms of the J ob offer accorded wIth the reqUIrements of AppendIx 18 Employer counsel's argument that the breach was InconsequentIal because there have been no lay-offs In the young offender field when the Government provIded thIS servIce IS not supportable There was no eVIdence to suggest that the new employers would not restructure servIce delIvery In fact the eVIdence of the Mimstry was clear that It advIsed theIr employees that there would be no Job guarantees after dIvestment. Further semonty protectIOn for the purposes of lay-off clearly affects Job secunty 14 The questIOn to consIder next IS how to remedy the loss of the opportumty The umon has requested that the board make an order whIch amounts to requmng the Mimstry to re-tender the work of ProJect Dare and Genest and alternatIvely In the latter case allowIng those who opted out to re-elect whether to opt In or out. LIkewIse IndIVIduals who worked at Syl Apps should have the opportumty to re-elect whether or not to work for the new employer In the umon counsel's submIssIOn. The first Issue here IS whether the board has the power to make such an order The employer took the posItIOn that the board could not order reSCISSIOn because It would affect unrepresented thIrd partIes (WendIgo Anago) However the board would not be ordenng reSCISSIOn, whIch IS somethIng partIes to a contract may seek In certaIn CIrcumstances It IS more lIke a cease and desIst order In cases where a umon has establIshed that the employer has wrongly contracted out work, arbItrators routInely make cease and desIst orders that affect thIrd partIes Such an order wIll lead to certaIn economIC consequences for the contractor but the contractor can seek redress for the employer's breach of the contract In the courts (FanshGyt,e p 168) The only dIfference here IS that the contractIng out IS not Itself a vIOlatIOn of the collectIve agreement, rather It was the reqUIred terms of contactIng out that were vIOlated. Thus after careful consIderatIOn of thIS Issue, I am persuaded that the board has the power to make an order that reqUIres the employer to cease and desIst contractIng out work, where there has been a breach of the collectIve agreement In the contractIng out process The next Issue IS whether a cease and desIst order IS appropnate or feasIble In thIS case for the work contracted out for Genest and ProJect Dare HavIng carefully consIdered the umon's submIssIOn I have decIded that It IS not appropnate In the CIrcumstances The RFP' s for the three InstItutIOns In questIOn were released February 7 2000 and all contaIned the IdentIcal language Because of the wordIng of the tenders, USIng the exact language of the collectIve agreement, the umon was unaware of the breach untIl June 2000 some three to four months after the RFP' s were released. But the problem wIth the RFP's was recogmzed at least by June 6 2000 when the umon filed a gnevance for Genest, and the heanng before the Board dId not occur untIl October 17 October 2000 and was not IS argued untIl November 16 2000 Genest was dIvested July 17 2000 The umon's gnevance for ProJect Dare was filed June 28 2000 and the dIvestment occurred on July 31 2000 There IS no eVIdence before the board that the umon exercIsed ItS nght to an expedIted heanng under AppendIx 18 before thIS board, before eIther dIvestment occurred. It also may have been possIble to seek Intenm relIef In the nature of an "InJunctIOn" or an order to stay dIvestment of Genest and ProJ ect Dare pendIng a decIsIOn on the ments There was no explanatIOn for the delay In order to seek a remedy such as re-doIng of a tender there must be eVIdence that everythIng was done that was possIble to be done to advance the case wIthIn the provIsIOns of the collectIve agreement before dIvestment, or at least as soon as the problem IS recogmzed. OtherwIse too many people can be adversely affected. WhIle the thIrd party contractor IS not a concern here nor IS the Inconvemence of the employer there must be a concern for the potentIal harm to Innocent bystanders, IncludIng employees of the new employer and those who opted In to the new employer's facIlIty Clearly the sooner the order can be made the better The gnevance for Syl Apps was not filed wIth the board untIl October 17 2000 when the gnevances were first put before the board. As was noted earlIer the gnevances were not fully argued untIl a month later on November 16 2000 Syl Apps was dIvested on November 30 2000 The umon has argued that the tImIng of the dIvestment at Syl Apps was mamfestly wrong, occurrIng between the argument of the case and the decIsIOn. However the umon IS not seekIng a cease and desIst order here One of the umon' s ratIOnales for requestIng an order that would lead to a re-tendenng of the work at Genest and ProJect Dare IS that the employer breached the trust Imposed on It by the tendenng process of AppendIx 18 However there IS no eVIdence In the record that the employer knowIngly and delIberately breached the collectIve agreement In the tendenng process The umon asked In the alternatIve for an order that employees who opted out of the RFP' s for Syl Apps and Genest be gIven the nght to re-elect whether to take a J ob wIth the new employer ThIS IS sImply not feasIble The only way that thIS could work IS If the tendenng process was completely 16 redone The Mimstry has no power to InSISt on a change to a tender that IS long fimshed and thIS board does not have the power to order the thIrd partIes to offer employment to those who opted out ongInally HavIng found that a cease and desIst order or an order for re-electIOn are not appropnate remedIes, the Issue remaIns what IS appropnate for the IndIVIduals who lost the opportumty of electIng In or out of the RFP wIth the terms reqUIred under the collectIve agreement. It IS tnte law that arbItrators are reqUIred to fashIOn an appropnate remedy when the breach of the collectIve agreement has resulted In a loss A breach "of a nght ImplIes the eXIstence of a remedy" OPSEU (Berry et al.) p 13 The reasomng In the old leadIng case, Polvmer Corp by ArbItrator LaskIn as he then was, IS also helpful "that the adJudIcatIOn was Intended to be remedIal as well as declaratory should hardly be doubted." (p 56) The board In Polvmer Corp found that boards of arbItratIOn have an Inherent power to award damages for "compensable loss" and held further There IS no need to emphasIze that the dIfficulty of asseSSIng damages has never been a reason for denYIng a claim thereto based on an establIshed breach of contractual or other oblIgatIOns owed to the claimIng party (p 64) WhIle damages are not the usual remedy for a breach of the collectIve agreement, after careful consIderatIOn It IS the only feasible remedy Counsel for the employer submItted that If the board was persuaded that there was a loss to the employees, then the board should assess the damages and make an award. Counsel for the employer was adamant that the partIes would be unable to agree between themselves on an appropnate amount for damages Counsel for the umon dId not oppose thIS posItIOn. ThIS posItIOn may change now that the board has decIded that damages are an appropnate remedy Further neIther counsel made any submIssIOn on how damages mIght be assessed for the loss of the opportumty to elect wIth the reqUIred terms (the "loss of the opportumty"), therefore before makIng thIS order the board reqUIres submIssIOns, whIch may be made eIther orally or In wntIng on thIS Issue In conclusIOn, the board makes the folloWIng orders wIth regard to the IndIVIduals In the categones noted at the begInmng of thIS decIsIOn 17 A) those who opted In to work for the new employer who have not been provIded wIth semonty for lay-off and promotIOn shall receIve theIr severance and all momes as they may be entItled under sectIOn 5.2 of AppendIx 18 and damages for the "loss of opportumty" as agreed by the partIes or subsequently ordered by thIS board. B) Those who opted out and were hIred by the new employer who have not been provIded wIth semonty for lay-off and promotIOn, should receIve theIr severance and all momes as they may be entItled under sectIOn 5.2 of AppendIx 18 and damages for the "loss of opportumty" as agreed by the partIes or subsequently ordered by thIS board. C) Those who opted out and were not successful In gettIng a posItIOn WIth the new employer or those who dId not seek employment should receIve theIr severance and all momes as they may be entItled under sectIOn 5.2 of AppendIx 18 and damages for "the loss of opportumty" as agreed by the partIes or subsequently ordered by thIS board. Those IndIVIduals workIng at Anago and KInark who have semonty protectIOn for lay-off and promotIOn are not entItled to damages for the "loss of the opportumty" Some IndIVIduals sIgned mInutes of settlement wIth the Mimstry and are therefore outsIde thIS order Counsel for the umon requested that Mr Carlos LIma and Ms Janet McLean, who at the tIme ofheanng were on WSIB and L TIP respectIvely not be Included In the decIsIOn. The board was also asked to exclude Mr Hernam PereIra from the decIsIOn. Counsel reserved the nght to make submIssIOns regardIng these employees at a later date, If necessary 18 The board shall remaIn seIzed to hear submIssIOns on the quantum of damages for the loss of the opportumty to elect In or out of the RFP wIth the reqUIred terms of the collectIve agreement and wIth regard to the above noted employees and finally to address any Issues whIch may anse regardIng the ImplementatIOn of these orders Dated at Toronto thIS 21st day of March, 2003 (~ ~', .. .' , ~... . .'_ ._~.., . ,- ,_~I ,- _..". ,. --- : .'.. 0" .~ " . t' .' "... ';":":.,, ' .." :.. " j ,~. ,., "" <"'~!:i;" "., '''',...... ........' . .........., ""Iw:>i.> --- ": ,/'~:<'.,.,::~~:~,,4:'~;" '.,;' :, ~'.'..,: Debo"iah lD LeIghton, Vice-Chair