Corporation of the City of Pembroke v. Pembroke Police Association, 1991 CanLII 4452

Corporation of the City of Pembroke v. Pembroke Police Association

0173-91 Corporation of the City of Pembroke, Applicant v. Pembroke Police Association, Respondent

Before : Mary Ellen Cummings, Vice-Chair; Nicole LeClerc and Geri Sheedy, Members

Appearances: Carole Piette, Ray Brazeau and C.A. Gauthier for the Applicant; Clifford Wilson and Steven Carson for the Respondent

Cite As: Pembroke (1991), 2 P.E.R. 157

Negotiations - Agreement

The Act does not require pay equity plans to be ratified. In pay equity negotiations it is critical that parties knowthatthe people they are negotiating with have the authority to negotiate the agreement, or iftheydo not, what steps are necessary to conclude a binding agreement. Unless a party makes clear that its agreement is subject to ratification, that agreement is valid within the meaning of the Act. The obligation tomakeclearthepreconditionofratificationfallsonthepartyclaimingtheprecondition. In this case, it was never clearly stated that ratification was required.

Négotiations - entente

La Loi n'exige pas que les programmes d'équité salariale soient ratifiés. Il importe, dans les négociations relatives a l'équité salariale, que les parties sachent que les personnes avec lesquelles elles négocient ont le pouvoir de négocier une entente. Dans le cas contraire, elles doivent savoir quelles mesures sont nécessaires pour conclure une entente ayant force exécutoire. Une entente conclue entre des parties est valide au sens de la Loi sauf si une partie précise bien que l'entente est sous réserve de ratification. Il incombe à la partie faisant valoir la condition de ratification d’en informer les autres parties. Dans le cas présent, on n'a jamais clairement précisé que la ratification de l'entente était nécessaire.

DECISION OF MARY ELLEN CUMMINGS, VICE CHAIR AND GERI SHEEDY, MEMBER, JUNE 20, 1991

1The Board of CommissionersofPolicefortheCityofPembroke(the"Board") made an Application to the Tribunalon February 9, 1991 with respect to an OrderofaReviewOfficerdated January2, 1991.

2At the commencement of the hearing the parties agreed that the employer for the purposes of pay equity is the Corporation of the City of Pembroke (the "City"), therefore, by agreement, the Application and style of cause are amended accordingly.

3At issue are the following:

Did the parties reach agreement on the pay equity plan, in accordance with subsection 14(4) of the Pay Equity Act, 1987, S.O. 1987, c.34, as amended, (the "Act") prior to the issuing of the Order?

Is the Application to the Tribunal timely?

Is the paid lunch provided to the male comparators a "benefit" within the meaning of the Act, whichmust be given to the comparable female job classes as partoftheir payequity adjustment?

4. On the first day of hearing, the parties argued the first two issues as preliminary matters.

Did The Parties Reach An Agreement?

1 The facts are largely undisputed. The City and the Pembroke Police Association (the "Association") commenced pay equity negotiations early in 1990 for a bargaining unit composed of civilian members of the police force.

2 Although the City is the Employer, all pay equity negotiations were conducted between the Associationandagroupselectedbythe Board, not the City. However, there isnodisputethattheBoard represented the Employer, the City, in these negotiations. The Board's negotiators were Ray Brazeau, Secretaryto the Board; K.J.Nighbor,SpecialAdvisor;andPaulBeaudry,aconsultant. The Association was represented by Clifford Wilson, President; James Robichaud, Vice President and Steven Carson, Treasurer.

3 Fairly early on in the negotiations, the Association expressed some concerns about the authority of the Board's negotiating team, particularly about Mr. Beaudry. In past collective bargaining, the Board's negotiating team consisted of Board Commissioners, but in this case, no Commissioners were involved. Since the Association was accustomed to negotiating with Commissioners and not with an outside consultant, the Association wanted some clarification of the negotiating team's authority. Mrs. Nighbor subsequently advised the Association that Mr. Beaudry had been hired by the Board to negotiate pay equity with the Association.

8. Although the Association was not aware of it at the time, on February 27, 1990 the Board had passed a motion relating to the Association's concerns. The Board Minutes read as follows:

Mrs. Nighbor explained that a meeting had been held withthe PoliceAssociationand the City's consultant with respect to pay equity. There were some concerns expressed by the Association that the City's consultant was not authorised to negotiate pay equity with the Association and they wanted that point clarified.

4In that meeting, the Board passed the following Motion:

5As bargaining continued, the parties sought the assistance of a Review Officer. At a meeting with the Officer on July 17, 1990, a Memorandum of Settlement was signed. Paul Beaudry and Ray Brazeau signed for the Employer and Clifford Wilson, James Robichaud and Steven Carson signed for the Association. The Memorandum identified the male comparators for the two female job classes in the bargaining unit, set out the pay equity adjustments and the schedule for making the adjustments. It also stated that the Memorandum would form the basis of the pay equity plan.

11. On July 19, 1990, Mr. Brazeau wrote to Mr. Wilson, attaching an "Interim Pay Equity Report", requestingthatMr.Wilsonreviewit"andadviseifitmeetswiththeAssociation'sapproval". He added that he would "attemptto arrange a specialmeetingofthe Commission [the Board] and hopefullyhave the final report prepared for posting." On August 22, 1990, Mr. Brazeau wrote to Mr. Wilson again attaching the "Interim Report on Pay Equity". The letter said:

Although the plan has been agreed to, I would appreciate your reviewing the format and content and advising if it meets your approval.

6Although it was not expressly addressed in evidence, it appears that the document met with the Association's approval.

7Sometime before September 5, 1990, Mr. Brazeau contacted Mr. Carson to say that there had been an error in the calculation of the adjustment for the female job classes. The parties met on September 5, 1990 and held a conference call with the Review Officer. The Memorandum of Settlement of July 17, 1990 was amended to reflect the new calculation. Sometime after that date, Mr. Brazeau again called Mr. Carson to discuss how the retroactive pay equity adjustment would be paid out. Mr. Brazeau proposed to pay it in a lump sum and the Association agreed. No amendment was made to the Memorandum.

8On September 21, 1990, Mr. Brazeau submitted the "Final Report of the Pay Equity Program" to the Board for its approval at a September 24, 1990 Board meeting. The Board did not approve it.

9The next day, Mr. Brazeau telephoned Mr. Wilson and informed him that the Board had not approved the pay equity plan and therefore, there was no agreed pay equity plan.

10On January 2, 1991, a Review Officer ordered the Employer to post the pay equity plan that formed Appendix 1 to her Order. We have not seen that plan.

11In his evidence, Mr. Brazeau stated that he had no authority to bind the Board. While the Board has no written policy setting out what matters must be approved by it before implementation, the Board triesto followthe writtenpolicyofthe Citywhichrequiresthatcontracts,tendersand financialexpenditures of greater than $2000 be approved by City Council. The pay equity adjustments in the Memorandum of Settlementwouldincreasethesalariesofthefemalejob classes by more than $2000 a year. Mr.Brazeau understood the Board's motionofFebruary27, 1990 gave the negotiating team the mandate to negotiate pay equity, but not to bind the Board to an agreement.

12No witnesses were called by the Board who had personal knowledge of the Board's practice with respect to the ratification of collective agreements reached with the Association. In preparation for the hearing, Mr. Brazeau reviewed Minutes of the Board back to approximately 1982. He testified that the Minutesshowedthatthe Board had ratified collective agreements negotiated with the Association. Inthe past, collective bargaining has been conducted by Board Commissioners without the assistance of outside consultants. Mr. Wilson confirmed that this had been the practice. We heard no other evidence on the parties' practice with respect to collective bargaining.

13Mr. Brazeau also testified that his correspondence and telephone calls with the Association with respect to the "Interim Pay Equity Report" and the amendments to the pay equity adjustments and the schedule of payouts afterthe MemorandumofSettlement wassigned,weredone to ensurethateverything was complete for his "Final Report of the Pay Equity Program" to the Board. When Mr. Brazeau was askedwhetherheeveradvisedthe Associationthatratificationbythe Boardwasrequired,he admittedthat he could not be sure that he had. He said that he thought that it was understood.

14As stated, the facts are not reallyindispute. At issue however, are the consequences that flow from them. The Association argued that it was led to believe that the group that it was negotiating with had the authority to come to an agreement and that atno time wasthatauthoritysaid tobe limited by a ratification requirement.

15The Employer argued that the authority of its negotiating committee was limited to negotiating the agreementandthatithadno authority to bind the Board. The Board maintained that theAssociationwas never told that there was no requirement of Board ratification. Further, the Employer argued that Mr. Brazeau's letter of July 19, 1990 indicated that the pay equity plan would be taken to the Board and the Association's reliance on the statement in Mr. Brazeau's letterofAugust22,1990, thatthe plan had been "approved" indicates that the Association knew that the plan had to be approved by the Board before it would be implemented. The Employer argued that the Association mistakenly believed that the plan had been approved by the Board, and cannot now argue that it did not know that Board ratification was a necessary component of the bargaining process.

That Mr. P. Beaudry of P.I.R.C. be authorised to negotiate pay equity on behalf of the Pembroke Board of Police Commissioners.

Decision

22. TheAct contains no obligationthatnegotiatingcommitteesforeitheremployers or bargaining agents seek ratificationof a pay equity plan which has been agreed to before it can be implemented. Subsection 14(4) states:

When an employer and a bargaining agent agree on a pay equity plan, they shall execute the agreement and, on or before the mandatory posting date, the employer shall post a copy of the plan in the workplace.

23. Parties may choose to make ratification of agreements reached by their negotiating committees part of their pay equity negotiations, but it is not a requirement of the Act. In a case such as this, the Tribunal mustdetermine ifthe partieshave reachedagreement onapayequityplan,withinthe meaningofsubsection

14(4). The Tribunal must determine what negotiating process the parties agreed to. In this case, the Tribunal must determine if the partiesunderstoodthatratificationbythe Board was a precondition to their reaching agreement on a pay equity plan.

2 In pay equity negotiations it is critical that parties know that the people that they are negotiating with have the authority to negotiate an agreement, or if they do not, what steps are necessary to conclude a binding agreement. In payequitynegotiations,itis also critical that parties be able to determine when the process of bargaining has come to an end. The existence or non-existence of an agreed pay equity plan isvitalto the parties' obligations under the Act. If anagreedplanexists,itisdeemedapprovedbythe Pay Equity Commission, under subsection 14(5), and the employer shall make the first adjustments required. If an agreed plan does not exist, a Review Officer may make an Order with respect to all outstanding matters under subsection 16(2). The existence or non-existence of an agreed plan determines the next steps in the pay equity process for the parties.

25. The Ontario Labour Relations Board (the "OLRB") has often been faced with the issue of determining whether the parties to collective bargaining negotiations have concluded a "collective agreement" within the meaningofsubsection1(1) (e) of the Labour Relations Act, R.S.O. 1980, c.228. On this issue, the Board has said in Graphic Centre (Ontario) Inc., [1976] O.L.R.B. Rep. May 221 at paragraph 11:

The parties, however, must know, with a high degree of certainty and predictability, precisely when they have entered into a collective agreement so as they may properly assume their respective duties and responsibilities and conduct themselves in a manner consistent with the existence of a subsisting agreement. It should be added that certainty in this regard minimises the amount of "litigation" which might otherwise come before the Board.

3 The principles that the OLRB has enunciated in this area are useful to the Tribunal. The interests inherent in the bargaining process for a collective agreement are similar to those underlying negotiations for a pay equity plan. Just as the existence of a collective agreement is often determinative of the rights and obligations of parties, so too is the existence or non-existence of a pay equity plan under the Act.

4 Under the Labour Relations Act, there is also no statutory obligation to ratify a collective agreement. In GaldinoBerdwsco,[1977]O.L.R.B.Rep. Nov. 774, the OLRBhadtodetermine whether a collective agreement existed in light of complaints about the ratification process that was carried out by the bargaining agent. The OLRB found that the employer and bargaining agent had not made their terms of settlement subject to ratification. At paragraph 10, the OLRB said:

Ratificationofthe proposed terms of a collective agreement isnota requirement underthe Labour Relations Act and thus evenifno ratificationoccurred at the [union's ratification] meeting of May 13 (and we make no finding in this regard) this fact would not have affected the validity of the agreement. We would stress that the situation here differs from that where parties sign a memorandum of settlement subject to ratification. In such a situation ratification would be a condition precedent to the coming into being of the collective agreement, and thus the question as to whether or not such ratification had occurred would be crucial.

1 The reasoning of the OLRB in that case is equally applicable in the pay equity context. Unless a partymakes clear that its agreement issubjectto ratification, thatagreement isa valid agreement withinthe meaning of subsection 14(4) of the Act. The obligation to make clear the precondition of ratification falls on the party claiming the precondition.

2 We find that in this case, the Employer never clearly stated that ratification was required before the parties' agreement could be binding on them. We find that the Association was advised of the need for Board ratification of the pay equity plan agreed to by the Employer and Association's negotiating committees for the first time on the day that it was told by Mr. Brazeau that the Board had not ratified the plan.

3 We are not satisfied that the Association ought to have known that any agreement reached was subject to Board ratification. To the extent that past practice in collective bargaining may be useful in determining the parties' expectations of the process of pay equity negotiations, we did not find that the evidence of past practice in this case was particularly helpful. While there was evidence that collective agreements between the Association and the Board had been ratified by the Board, we do not think that the Association should have understood that negotiating the pay equity plan would necessarily follow the same process. We reach this conclusion on the evidence that the Association raised concerns about the authority of the Employer's negotiators. The Association recognised that the Board appeared to be conducting pay equity negotiations differently from collective bargaining negotiations, that is, with a consultant instead of Commissioners. Those concerns were taken to the Board and answered by the Board's Motion of February 27, 1990. If Mr. Beaudry's authority was limited in some way, the Board should have said so. Having raised the concern about the authority of the Board's negotiators, the Associationwasnotrequiredtogo further,particularlygiventhatthe onus wasonthe Board toclearlystate the existence of a ratification precondition.

4 There was a further opportunity to limit the authority of the negotiating team when the Memorandum of Settlement was signed on July 17, 1990. Again, the Memorandum was not made subject to ratification. At no time was the Association advised that the people it was negotiating with did not have the authority to enter into a binding agreement.

5 We are not prepared to find that Mr. Brazeau's letters of July 19, 1990 and August 22, 1990 were enough to put the Association on notice that the Employer had to ratify the agreement before it would be implemented. Those letters do not indicate that approval of the Board was being sought. Further, the August22,1990letterreferstotheplanasalreadyhavingbeenagreedto. When read together, the letters are ambiguous. If the Board intended to reserve for itself the right to ratify the pay equity plan, it would have had to have been much clearer, particularly given the history of the pay equity negotiations to that point.

6 We understand that our colleague, Ms. LeClerc sees the facts differently. She believes that the Association understood that the Board was required to ratify and that the case is really about a misunderstanding as to whether the Board had ratified before the letter of August 22, 1990 was sent to the Association. In support of that view, she relies on the testimony of Mr. Carson and the statement of the issue by the Review Officer. We simply do not belive that this evidence is as clear as she states it. Further, we are not prepared to rely on how the Review Officer has characterized the issue. At the risk of being repetitive, we emphasize that the obligation to make clearthatratificationwasrequiredfalls onthe Board. We are not satisfied that the Board was clear enough about its intentions.

7 We find, therefore, that the parties had agreed to a pay equity plan, within the meaning of subsection 14(4) of the Act before the Review Officer issuedherOrderonJanuary2,1991. That pay equity plan is found in the "Final Report of the Pay Equity Program " which Mr. Brazeau submitted to the Board on September 21, 1991. We wish to make it clear that we are in no way commenting on the contents of the payequityplan. We do not know whatitcontains. It was not put before us in evidence, we have not seen it. We find only that it was the plan agreed to by the parties. Having found that a pay equity plan was agreedto, it follows thatsubsection14(5) ofthe Act operates and the payequityplanisdeemedapproved by the Pay Equity Commission. We order the parties to execute that agreement and we order the Employer to post it in the workplace.

8 Since we find that the parties had agreed to a pay equity plan before the Order was made, we revoke the Order dated January 2, 1991.

9 Because of our findings on the first preliminary matter, it is not necessary for us to decide whether the Application of the Employer to the Tribunal was timely. Further, it is not necessary to hear the merits of that Application and the remaining hearing dates are hereby cancelled.

DECISION OF MEMBER, NICOLE LECLERC, JUNE 20, 1991

1 I do not concur with the decision of the majority. In order to express my reasons for arriving at a different conclusion, I find it useful to restate the issues as presented before the Tribunal.

2 The Board of Commissioners of Police for the City of Pembroke (the "Board"), filed an application for a hearing before the Tribunal on February 9, 1991 contesting an order of a Review Officer dated January 2, 1991.

3 The Pembroke Police Association (the "Association") raised the following preliminary objections at the hearing:

i)thattheBoard'sapplicationwiththe Tribunalwasnotfiledinaccordance withsubsection 16(4) of the Pay Equity Act, 1987 (the Act) in that it was filed after the 30 day period allowed for filing objections; and ii)thatthe Associationand the Board of Police Commissioners entered into an agreement respecting pay equity on July 17th, 1990 for the Association's members, and that the Board cannot now claim there was no agreement.

4. The Board advised the Tribunal that it was now only contesting the Review Officer's order on the following matter:

Is the paid lunch hour provided to the male comparators to be considered as a benefit for the purposes of pay equity?

Consequently, the Board is not contesting other aspects of the pay equity plan ordered by the Review Officer.

1 The facts, as set out in the majority decision, are largely undisputed. To avoid repetition, I will thereforeonlycomment onthosewhichledmeto a different conclusionwithrespectto the issuessubmitted for the Tribunal's consideration.

2 I will address the preliminary objection raised by the Pembroke Police Association with respect to an alleged agreement respecting pay equity.

Have The Association And The Board Of Police Commissioners Entered Into An Agreement Respecting Pay Equity?

7. First, I feel it is important to underline the nature of the memorandum of settlement signed by the parties on July 17, 1990. It is clear, in my view, that this memorandum constitutes the basis of the pay equity plan between the Board and the Association butnotthepayequityplanitself. To this end, I quote the first paragraph of this memorandum which stipulates:

1.The parties agree to the attached to form the basis of the Pay Equity plan for the Corporation of the City of Pembroke and Pembroke Police Association.

2 This agreement, signed on July 17, 1990, does not constitute a pay equity plan in accordance with subsection 14(4) of the Act, nor did the parties expressly intend for it to be so. It forms the basis of the pay equity plan to be negotiated by the partiesinthatitcontains onlyaportion of the document known as a pay equity plan. It identifies two female job classes and their male comparators, as well as the period of time allotted for the pay equity adjustments to be paid. A pay equity plan, following section 13 of the Act isa much more comprehensive document than that which hasbeensignedbythesepartiesonJuly17, 1990. This clarification isimportantbecauseoftheconsequencesattachedbythemajoritydecision to the binding effect of a pay equity plan concluded as per subsection 14(4) of the Act.

9. The second point I wish to address is the majority's statement that there was absence of notice to the Association with respect to the requirement for approval by the Board of the memorandum signed by its negotiators. The majority concludes the Board had never notified the Association of the requirement for

ratification until it advised the association, on September 22, 1990 that the Board had not approved the "Final Pay Equity Report" containing the items agreed to in the memorandum of settlement.

3 In my view, this is incorrect. Mr. Brazeau wrote to Mr. Wilson, president of the Association on July 19, 1990, two days following the signature by the parties of the memorandum of settlement. To this letter he attached an "Interim Pay Equity Report" requesting that Mr. Wilson review it and advise if it met with the Association's approval. Headdsthathewouldattemptto"arrangeaspecialmeetingoftheBoard and hopefully have a final report prepared for posting".

4 This letter is very significant and revealing of the trueexpectationsofbothparties. First, it confirms that what they had signed two days earlier did not constitute a pay equity plan ready for posting in accordance with subsection 14(4)ofthe Act. The request for the Association to review the "Interim Pay Equity Report" is a clear indication thatMr.Brazeauwasinthe processofpreparingthe document known as a "pay equity plan" following section 13 of the Act for Board approval. This was confirmed by Mr. Brazeau's testimony.

5 Furthermore, contrary to the majority's conclusion, I find this letter constitutes the first time the Associationwasexpresslyadvisedthatthe Board had retainedthe right to approve the agreementsarrived at by its negotiators.

6 It is rather surprising that at this time neither the issue of ratification nor the issue of the alleged binding authority of the Board negotiators was raised by the Association. If it felt so strongly that it had already entered into a "binding agreement" with the Board on July 17, 1990 and that there was no requirement forthe Board to approve the memorandumsigned by the parties, whydid the Associationnot react at this time to the letter expressly referring to the requirement for Board approval? Why was the question not even raised with Mr. Brazeau?

7 The evidence indicates the argument with respect to the binding effect of the memorandum signed on July 17, 1990 was only raised by the Associationatthe time it was advised, in September, that Board approval had not been granted. In my view, the Association never raised nor responded to the issue of the requirement for Board approval, whether through its submissions, or in evidence before the Tribunal at the Hearing. This silence is somewhat puzzling. Icanonlyinterpretthislackofintervention as a sign of acceptance bythe Associationofthe terms ofthe letter and that the Association therefore had knowledge that approvalbytheBoardofCommissionersofPolicewas required in these circumstances. In my view, at this point in their negotiations, both parties were aware and understood that the memorandum of settlement was subject to Board approval.

8 While on the issue of ratification, the majority states that the Pay Equity Act contains no obligation that either employers or bargaining agents seek ratification of a pay equity plan which has been agreed to before it can be implemented, relying on subsection 14(4) of the Act. Even though ratification is not a requirement of the Act, parties maychoose to makeratification by their principals part of their pay equity negotiations. The Act does not stipulate the terms by which parties are to conduct their pay equity negotiations.

9 The evidence in this case reveals that these parties chose to conduct their pay equity negotiations in the same manner as they had conducted past negotiations. The only distinction between pay equity negotiationsandpastnegotiations was in the parties mandatedbytheBoardtoconductnegotiations. This was the first time there were no Commissioners on the Board's negotiating team. The concern raised by the Association with respect to the pay equity negotiations was not related to the process but to the presence of an outside consultant inlieu of a Board Commissioner. The evidence submitted through Mr. Brazeau's testimony clearly indicates that past negotiated collective agreements had always been subject to Board approval. This was confirmed by Mr. Wilson, the Association's president who also added that in the past the Board had always approved agreements concluded by their negotiators. It is important to notethat the fact that past agreements were always approved bythe Board does notmeanthe Boardhad abandoned its right to approve them. It may merely indicate that the presence of a member of the Board of Police at the negotiations table in the past, was more conducive to Board approval. In light of that, the Associationcould reasonablyhave expectedthatforthe payequitynegotiations,sincethere wasno Board member on the negotiating team, it was less likely that it would be approved but still subject to approval.

17. ThesecondlettersenttoMr.WilsonbyMr.BrazeauonAugust 22, 1990 is in my view, the source of the problems arising in this case. This letter states:

Attachedis"InterimReportonPayEquity"Althoughthe plan has been agreed to,Iwould appreciate your reviewing the format and content and advising if it meets your approval.

18. Again to this letter, Mr. Brazeau attached the 'Interim Report on Pay Equity'. In my view, the disagreement between the partiesstems fromthe interpretationgivento this letterby the Pembroke Police Association. In his testimony, Mr. Steve Carson, secretary of the Association, said that he assumed, upon readingthe words "althoughthe planhasbeen agreed to", that the Board had approved the memorandum of settlement signed onJuly17,1990. Furthermore, the review officer's order confirms the Association's belief as follows:.

The Association's position was that it entered into an agreement with the Corporation of the City of Pembroke in good faith. It stated that after being informed that the agreement hail been ratified, it was subsequently told it had been annulled.

10 Mr. Brazeau, Secretary for the Board testified that the words "have been agreed to" referred to the parties' agreement signed on July 17, 1990 with respect to the female job classes and their comparators that were to form the basis of the pay equity plan. Later in his testimony, he stated that he was not sure he had advised the Association that approval by the Board was required, and added he thought it was understood.

11 The outcome of this case rests on the consequences attached to the assumption entertained by the bargaining agent, that is the assumption that the Board had ratified the memorandum signed by the parties in July. Before attaching any consequence to the bargaining agent's assumption, the following might be useful to assess the issues in this case:

Was it reasonable for the Association to come to this assumption in the circumstances?

Can the Tribunal bind one party to an agreement it has not approved, based on the other party's assumption that approval of that agreement had occurred?

1 On the question of reasonableness of the assumption, it is acknowledged that the letter of August 22, 1990, sent to the Association by Mr. Brazeau could have led to confusion. However, I am not convinced that the letter is the only basis of the Association's assumptions. The fact that agreements had always been approved by the Board in the past contributed to the Association's belief that any agreement itsignedwiththe Board negotiators, including that which it had signed on July 17,1990 would necessarily follow that route. It assumed this agreement would not be an exception. In response to Mr. Brazeau's testimony, Mr. Wilson not only confirmed that past agreements had always been submitted to the Board for approval but felt it was necessary to add that they had always been approved. However, what is important to consider in the circumstances is not the outcome of the Board's past practice of retaining the authority to approve agreements signed by its negotiators but rather the existence and consistency of that process.

2 It is questionable whether the text of the August 22, 1990 letter is sufficiently clear for the Associationtoconcludethatthesigned agreement had beenapprovedbytheBoard. Can the Association claim it was led to believe, through the August 22, 1990 letter that the Board had ratified the memorandum signed by the parties and that the Board was as of that date bound by it?

3 For one to claim that it was led to a particular belief by a party, the information provided which caused the belief must undoubtedly haveledtothatconclusionandthatconclusiononly. If the information providedisunclear,contradictory, ambiguous,or conflictingwithotherelementsinthe circumstances,then, a party is expected to questionthe intent of the meaning or intent of the information it was provided with.

4 In this case, if the letter is found to be clear, unequivocal, consistent with other elements in these circumstances, and leaves the Association with no alternative but to conclude as it has, then I believe the Association can claim the terms of the letter led it to believe that approval had taken place and the Board should then bear the responsibility of having led to this belief. If, on the other hand, the letter is found to beunclear,ambiguous,contradictoryand inconsistent with other elements inthesecircumstances,thenthe reasonable, responsible and expected behaviour of the Association is to verify the meaning and intent of the correspondence received rather than assume its meaning.

5 In this case, the content of the August 22, 1990 letter is not sufficiently clear and does not indicate that the Board has approved the parties' signed memorandum. The letter is not a clear indication that the Board's approval has occurred as it refers to and has appended to it an "Interim Pay Equity Report". Furthermore, in this letter the Board is seeking the Association's approval for format and content of a document calledthe "InterimPayEquity Report"; this is an indication that the preparationofthe necessary documentation for Board approval is still ongoing.

6 The Association was therefore not led to believe approval had occurred by the letter of August 22, 1990; the Association's belief is but a mereassumptionthatcannotbe upheld by the Tribunal. Having not expressly been advised of Board approval, the bargaining agent had the obligation to make reasonable efforts to verify whether its assumptions were founded or not.

7 The Tribunal cannot bind the Board to an agreement it has not approved, on the basis that the Associationassumedithad been. Nor can the Association, having awaited and laterassumedratification had occurred, now claim the agreement when signed on July 17, 1990, was binding and that ratification was not required.

8 In the absence of approval by the Board of Commissioners of Police of the July 17, 1990 Memorandum of Settlement, the parties had not entered into an agreement respecting pay equity. I find that in this case, both the employer and the bargaining agent had, as in past negotiations made their terms ofsettlement subjectto ratificationand thatthis ratificationisa conditionforthe memorandumofsettlement to become aPayEquityplanwithinthe meaningofsubsection14(4) ofthe Act. Therefore, this preliminary objection raised by the Association should be rejected.