0245-91 Health, Office and Professional Employees Division of the United Food and Commercial Workers International Union, Local 175, Applicant v. Northumberland and Newcastle Board of Education, Respondent; Canadian Union of Public Employees, Local 1206 and 1206-1, Other Party
Before : Mary Ellen Cummings, Vice-Chair; Donald Dudar and Susan Genge, Members
Appearances: David McKee, Ian Reilly, Grace Taylor, Maryanne Chanko and Joe Daignault for the Applicant; Kees Kort, Ron Sudds, John Reid, Bruce Davidson and Ken Duff for the Respondent.
Cite As: Northumberland and Newcastle Board of Education (1992), 3 P.E.R. 50
Negotiations - Agreements
The Tribunal held that the parties were bound by their agreement on weighting which had been presented toandratifiedbytheRespondent. The evidence did not establish that the question of point totals had been ratified and therefore it was not a binding agreement. The Employer did not abandon the issue of point totals when it chose to take the banding issue to Review Services. The Tribunal declined to make any order with respect to comparability in the absence of final point totals for the jobs in dispute.
Négotiations - Accord
Le Tribunal a statué que les parties étaient liées par leur accord sur la pondération qui avait été présenté àl'intiméetquecelui-ciavaitratifié. Il n' yavaitpasdepreuvequel'accordportantsurlestotauxdepoints avait été ratifié et, par conséquent, ce n' était pas un accord exécutoire. Le Tribunal a statué que l'employeur n' avait pas renoncé à la question des totaux de points en ne soumettant que la question du regroupement sux services de révision. Le Tribunal a refusé de donner un ordre quelconque en ce qui concerne la comparabilité en l'absence de totaux de points finals pour les emplois en question.
DECISION OF MARY ELLEN CUMMINGS, VICE-CHAIR, AND DONALD DUDAR, MEMBER, JUNE 10, 1992
- The Health, Office and Professional Employees Division of The United Food and Commercial Workers Union, Local 175 (the "UFCW") applied to the Tribunal with respect to an Order of a Review Officer, dated May 23, 1991. In the preface to the Order, the Review Officer stated that:
The parties have evaluated all female job classes within the bargaining unit and all potential male comparatorswithintheestablishment. The method of collecting job data, the job comparisonsystemand the point valuesallocatedfemale and male job classeshave beenagreedtobythe Unionand the Employer.
Theinterpretationofequalorcomparablevalue is at the heart of the parties' dispute. They have opted to create point bandsin order todetermine the comparabilityoffemale and male job classesbut cannotagree on their appropriate start and cut-off.
1The Officer went on to say that for many of the female job classes the banding methodology advocated by either party would produce the same result, that is, the female job classes would find the same comparable male job class. With respect to the job classes where the choice of banding methodologywould makeadifference,theOfficerre-evaluatedthejobsusinga"factoranalysis comparison system". She then determined and ordered which female job classes were comparable to which male job classes. The Officer did not make a determination on the appropriateness of the proposed banding methodologies, or any other methodology.
2The UFCW alleges that: the Order did not provide valid male job class comparators; the Order was based onincompletedata;the Order isinconsistent withthe planas agreedto bythe partiesand;the Order fails to meetthe standardsofsections 5, 6, and 7 ofthe Pay Equity Act, R.S.O. 1990, c. P.7 as amended. The UFCW asked the Tribunalto vary the Order by selecting other male job classes as comparators for the female job classes.
3In its Response, the Northumberland and Newcastle Board of Education (the "Employer") asked to have the Order confirmed. In the alternative, it asked the Tribunal to order the parties to commence negotiations of a pay equity plan.
4At the outset of the hearing, it became evident that the parties fundamentally disagree about the issues before the Tribunal. They disagree about what issues were before the Review Officer and about what issues are outstanding between them.
5The UFCW argued that the comparison system, the weightings and the point scores that resulted from the job comparisons had been agreed. Therefore, the only outstanding issue was the appropriate way to determine comparators, and consequently, that is the only issue that was before the Review Officer. It follows, the UFCW argued, that how to determine comparators is the only issue before the Tribunal.
6The Employer conceded thatthecomparisonsystemhadbeenagreedto,butdisputedthatthere had been an agreement on the weightings to be applied, or to the point scores. The Employer argued that it raised the issues of weightings and point totals with the Review Officer, then agreed to set them aside on a without prejudice basis, at the request of the Review Officer. The Employer agreed that the only issue thattheOrderaddressedisthedeterminationofappropriatecomparators. However, the Employer argued that while it is content with the Order, if the Tribunal decides to make its own determination of what are the appropriate comparators, the Tribunal cannot do so on the assumption that the weightings and point totals have been agreed to by the Employer.
- This Application was made with respect to an Order of a Review Officer issued under subsection 24(1) of the Act. Where such Orders are made, subsection 24(6) provides:
An employer or bargaining agent named in an order under this section may request a hearing before the Hearings Tribunal with respect to the order, and where the order was made following a complaint but the complaint has not been settled, the complainant may also request a hearing. (emphasis added).
7The Tribunal's jurisdiction, then, comes from matters relating to the Order. It is not necessary that the Order specificallyaddress anissue thatthe partiesput tothe Officerinorder for us to find thatthe issue arises with respect to an Order. Rather, we are merely concerned that before an issue comes to the Tribunal, the Review Services process be exhausted. Therefore, to determine if an issue arises with respect to the Order, we ask whether it was dealt with at Review Services, not whether the issue is contained in an Order.
8Consequently, in an oral ruling we asked the parties to lead evidence and argument on what issues they had intended to deal with at Review Services. This decision then, determines what issues we find are before us. In addition, we have determined what issues are outstanding between the parties in order to decide how best to proceed to hear this matter.
Evidence
1 The Employer contracted withtheClarendonGrouptodesignand implement a pay equity plan for all of the non-teaching positions of the Employer. Ken Duff was the consultant who worked with the Employer. He testified that his role was as a facilitator: he had the technical expertise to assist in the design ofa gender neutral comparison system and to assistthe EvaluationCommitteeto evaluatethe jobsina fair and consistent manner. In January 1989, the representatives of the bargaining agents were invited to attend a meeting in which Duff outlined his plan for meeting the Act's obligations. Exactly what was said at that meetingabout Duff'srole isindispute, but we find that the bargaining agents were told that Duff had been hired by the Employer as a facilitator for the preparation and application of a gender neutral comparison system for all non-teaching jobs, both union and non-union.
2 The first stage in the process was the design of a comparison system. A Technical Design Committee was established consisting of Duff, representatives of the UFCW, representatives of the Canadian Union of Public Employees, Local 1206 and 1206-01 ("CUPE") and Bruce Davidson, the Employer'sPersonnelandEmployeeRelationsManager. During the early months of 1989, this Committee designed and tested a comparison system. It wasreferredtobythepartiesasthe"Manual". The Manual describes the factors, and the subfactors to be used as well as the weightings between levels in each subfactor.
3 The Technical Design Committee also designed a questionnaire to be used to capture the job information. The Committee discussed what would be appropriate weightings both among the subfactors and the factors, and tentatively agreed to start with a set of weightings proposed by Duff.
4 The Committee then tested both the Manual and the questionnaire on a representative number of jobs and evaluated the results, using the Manual and the weightings proposed by Duff. Some minor changes may have been made to the questionnaire at this time and a change was made to the weightings within one ofthesubfactors. The Technical Design Committee discovered in the pilot testing that a change would have to be made to the working conditions factor to account for and value particular working conditions found in one of the schools. We find that after the end of May 1989, no changes were made by the Committee to the weightings.
5 In September of 1989 Duff made a presentation to the Employer's Board of Trustees. He explained the Manual that the Technical Design Committee had formulated and tested. He advised the Board that he believed the system would be an effective tool for the evaluation of non-teaching jobs. By resolution, the Board of Trustees approved the Manual. While it is not clear whether the Board of Trustees also approvedtherevisedquestionnaire,nooneallegesthatitwasnotapproved. Duff stated that the weightings as among the subfactors and factors were not presented to the Board, however the weightings within the subfactors were presented because they were part of the Manual that was presented to the Board and approved.
6 The Employer led no evidence on what the UFCW's representatives were told the Board had ratified. Ian Reilly, the UFCW's chief spokesperson on both the Technical Design and Evaluation Committees, testified that he thought the Manual, the questionnaire and all of the weightings had been put to the Board of Trustees for ratification. Reilly believed that because the Technical Design Committee had completed its work on all those elements and because all those elements were necessary in order for the next step, the evaluations of the jobs, to occur.
7 After the September Board of Trustees meeting, CUPE, the UFCW and the Employer signed a LetterofUnderstandinginwhichthey agreed to usethe Manualforthe purposeofcomplyingwiththe Act. A member of the Employer's Board of Trustees signed the Letter of Understanding on behalf of the Employer.
8 At the hearing, there was a dispute concerning the role of Davidson on the Evaluation Committee. The Employer argued that Davidson did not represent the Employer on the Committee, but in fact, represented non-union employees only. Davidsonwasnotcalledtotestify. Duff testified that he was told thatDavidsonrepresentedthenon-unionemployees,but admittedthatDavidson'srole wasmuddybecause he wasalsothe personwho could access anyfurtherinformationtheCommitteerequiredandwasa conduit between the Employer and the Committee. The UFCW testified that Davidson was wearing two hats: representing the Employer and the non-union employees. Reilly admitted that he had never been told that Davidson represented the EmployerontheEvaluation Committee. Reilly said that he regularly dealt with Davidson in his managerial capacity in grievance meetings and collective bargaining negotiations, although often Davidson was a member of a team that included more senior officials of the Employer. Therefore, Reilly testified, he assumed Davidson represented the Employer on the Evaluation Committee.
- We find that Davidson represented the interests of the Employer on the Evaluation Committee. Notwithstanding the intentions of the Employer, Davidson conducted himself in a manner that left the impressionhespokefortheEmployer. When thetwouniongroupsrepresentingtheemployeescaucused, Davidsondidnotjointhem. Davidson regularly participated when Duff briefed senior managementofthe Employer on the progress of the Evaluation Committee. On at least one occasion, Davidson expressed views in the Committee's deliberations that were the same as those of the Employer. If the Employer sought to convey to the UFCW that its Manager of Personnel and Employee Relations was not acting in his usual management capacity when he sat on the Evaluation Committee, it was incumbent on the Employer to so advise the UFCW and further, to ensure that Davidson's conduct was consistent with his
supposed role as only a representative of non-union employees. We conclude that it was reasonable for the UFCW to believe that Davidson represented the Employer on the Evaluation Committee.
9The role of Duff was also in issue. Duff testified that he saw his role as one of getting all the participants in the Technical Design and Evaluation Committee to the point of agreement. If that was accomplished,then,he said therewouldbelittleleftto"negotiate"later. When asked in cross-examination how he could get the parties to the point of agreement if there was allegedly no one representing the Employer on the Evaluation Committee, Duff responded that he would be in a position to make a recommendation to the Employer on the validity of theEvaluationCommittee'sresults. We conclude that while Duff was not a representative of the Employer, he was in a position to make effective recommendations to it and in fact did so.
10To return to the chronology of events, the questionnaires were then distributed to all non-teaching employees. A somewhat smaller committee was established to evaluate all the jobs. The Evaluation Committee consisted of representatives of the UFCW, CUPE, Duff and Davidson.
11There were a number of meetings throughout the fall of 1989. Without going into detail, the evidence disclosed that every questionnaire was reviewed by the Evaluation Committee. Every job class was evaluatedbythe entireCommitteeand a finalscorewasarrivedatforeachjobclass, using the weightsthat hadbeenalteredafterthepilottest. Although there was sometimes heated debate and all of the job classes were reviewed at least once after their initial rating, the Evaluation Committee reached a consensus on the value ofeachand everyjob class.Atthatpoint,Duffasked the Committeemembers if theywereprepared to go back to their principals and recommend the results. They all agreed that they were satisfied with the process. Duff also testified that he was satisfied with the work of the Committee.
12We find that the Evaluation Committee had reached an agreement on the final point scores for each job class, using the Manual and the previously decided weightings.
13A meeting was scheduledforDecember4,1989inwhichtheEvaluationCommitteewasto discuss how to determine which job classes were comparable. In addition to the members of the Evaluation Committee, Ron Sudds, the Employer's Superintendent of Business, and Charles Kennedy, the Superintendent of Instruction, attended. According to Duff, they were brought into the discussions because the time had come to make decisions that had cost implications. The majority of the discussion centred around how to determine which job classes were comparable. Prior to this meeting, the Evaluation Committeehadreacheda generalconsensus thatitwasappropriateto group allthe jobs in10 point bands, with the result that the female job classes would be paid the same rate as the lowest paid male job class within the band. However, there was no agreement on where to start the bands, that is, whether to start at0withthefirstbandending at 9.9 or start at 1withthefirstbandendingat10.9. The choice would have an impact on the range of comparators available for some of the female job classes.
14At the December 4, 1989 meeting Sudds also raised some concerns about the point scores that had been given to some of the job classes, but the majority of the discussion was about banding.
15At the end of the meeting there was no resolution. On December 7, 1989, Kennedy wrote to Reilly the following:
At the conclusion of our Pay Equity negotiation meeting on 4 December 1989, representativesofthe Boardrequestedseveraldays to perform a detailed costanalysis of the Board's and the union's positions respecting the placement of bands on the job evaluation results, following which the Board intended to advise the unions of its position in writing.
However, due to a significant difference in cost between the Board's and the unions' position amounting to just under $1,000,000, the Board's Personnel Committee has referred the matter to the Committee of the Whole of the Board for review.
I would therefore advise that the Board will delay its response until immediately after the next Regular Meeting of the Board on 14 December 1989.
- Duff testified that he met with the Trustees of the Employer's Board and was instructed not to accept the unions' position on banding. On February 1, 1990, the Evaluation Committee met again, with Sudds and Kennedy in attendance. At that meeting, theEmployerpresentedadocumentwhichoutlinedits view of the point values for some of the job classes. Both the UFCW and CUPE rejected the new evaluations and suggested that the parties talk about banding toseeifadealcouldbemade. There was no resolution and the parties agreed to make a joint application to Review Services. On February 6, 1990, Kennedy wrote to Reilly:
Further to my letter of 7 December 1989 and our meeting with the Job Evaluation Committee on 1 February 1990, I am writing to confirm that the Board does not accept the unions' position with respect to banding.
Accordingly, we have, as agreed on 1 February 1990, made application on behalfofthe partiestothe PayEquityCommissionforthe servicesofaReviewOfficer,a copyofwhich application is attached.
- The attached application to Review Services stated:
Since January 1989 union and non-union representatives of the following non-teaching employeegroupshave worked cooperatively to develop a genderneutralPayEquityJob Evaluation Plan and to evaluate all jobs as required by the Pay Equity Act ....
However, the parties have reached an impasse with respect to the selection of male comparators and have agreed to seek the assistance of a Review Officer.
1 The parties met on two occasions with the Review Officer. The Employer and CUPE reached a settlement, but the UFCW and the Employer did not.
2 In order to avoid having the Tribunal hear oral evidence of discussions with the Review Officer, the parties agreed to the following facts:
At the outset of the first meeting with the Review Officer on November 28, 1990, Ed Mustard [a representative of the Employer] indicated that the Board objected to the weighting factors, the scores and the bandings.
The Review Officer suggestedthatallthe issuesbesetaside,ona without prejudicebasis, and that the parties deal with the issue of banding only.
The Union objected to the Board raising the issues and the Board agreed with the Review Officer'ssuggestionthatthe otherissuesbe put asideona without prejudicebasis and only the issue of banding would be dealt with.
1 We find that this is the first time the Employer indicated dissatisfaction with the weightings. The Technical Design Committee altered weightings after the pilot test in May, 1989. Those weightings were not later changed and were used throughout the evaluation process. Duff testified that he was surprised when the Employer raised a concern about the weights at the Review Officer meeting.
2 Finally, Reilly acknowledged that any agreement reached respecting the pay equity plan would have to be put to the Employer's Board of Trustees before it would be binding onthe Employer.Reillythought that if the Board of Trustees rejected the plan, the process would have to be redone.
Decision
1 At issue then, is what matters were outstanding between the parties, and what did the parties intend the Review Officer to deal with. The UFCWarguedthattheEmployerisestoppedfromputting the point totals and the weightings in dispute. It argued first that the Employer cannot resile from any agreements reached by the Technical Design and Evaluation Committees in which its representatives participated. In the alternative, it argued that once the Employer agreed to take the issue of banding to Review Services, it abandoned any concerns it might have had with the weightings and point totals. As a further alternative, itarguedthatthe Employer'sraisingofthe weightings and point totals atReviewServiceswasfrivolous and in any event, at Review Services the Employer agreed to put those issues aside.
2 We find that the parties agreed to put only the issue of banding to the Review Officer. It is clear from both of Davidson's letters of February 6, 1990 that it was an outstanding issue on which the parties neededassistanceinresolving. However, the real question is whether that was the only outstanding issue betweenthe partiesorwhethertheweightingsandthepoint totals werealsooutstandingissues,eventhough they were not dealt with by the Review Officer.
- Each issue has to be looked at separately. We find that the agreement on weightings, both within the subfactors and between the subfactors and the factors, reached by the Technical Design Committee, is binding on the parties. As noted earlier, the Employer called no evidence as to what the UFCW was
toldtheBoardofTrusteeshadratifiedinSeptember1989. We are prepared to draw an adverse inference fromthefailuretoleadthatevidence. We believe the UFCW was reasonable in concluding that all of the tools the Evaluation Committee needed to begin the process of job evaluation had been ratified by the Board of Trustees. That includes the Manual, the questionnaire and all the weightings. Further, all of those tools were used by the Evaluation Committee, without challenge, up to the first meeting with the Review Officer. Whether the Board of Trustees did or did not ratify the weightings is immaterial, given that it was in the control of the Employer to arrange the ratification, and then clearly communicate the results to the UFCW. The failure of the Employer to lead evidence on what the UFCW was told leads us to conclude that the evidence would have been unfavourable to the Employer.
3 With respect to the point totals agreed to by the Evaluation Committee, we are not prepared to find thattheagreementwasbindingontheEmployer. First, the point totals were neversubmittedtotheBoard of Trustees for ratification. The UFCW acknowledged that the Employer's representatives with whom it was negotiating could not bindtheEmployer;ratificationbytheBoardofTrustees was necessary. Unlike the circumstances surrounding the ratification of the tools to do the evaluations, there is no evidence to suggestthe UFCW could reasonablyconcludethat this matter had been ratified bythe BoardofTrustees. Second, no Letter of Understanding was signed, in contrast to the process that was followed after agreement was reached on the tools that would be used to do the job evaluations.
- We do not find that the referral to Review Services of the issue of determining appropriate comparators constituted an abandonment by the Employer of its right to negotiate and then ratify, any agreement with respect to point totals. There is simply not sufficient evidence to establish abandonment. Further, at Review Services, the Employer raised the issue of point totals and then agreed to set it aside on a "without prejudice" basis. According to Black's Law Dictionary (5th ed.), at page 1437:
Where an offer or admission is made "without prejudice", or a motion is denied or a suit dismissed"withoutprejudice", itismeantas a declaration that no rightsorprivilegesofthe partyconcernedare to beconsideredas therebywaivedor lostexceptinsofaras theymay be expressly conceded or decided. The words "without prejudice" import into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not of themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid.
4 We conclude that when the Employer agreed to set aside the issue of the point totals at Review Services, it did not give up its right to raise that issue again. Rather, the Employer was prepared to set it aside, deal with the issue of how to determine appropriate male job class comparators, and then, if necessaryraisetheissueagain. That is precisely what the Employer is doing before the Tribunal. It argues that it is content with the results of the Review Officer's Order, but if the Tribunal intends to make its own determination of the appropriate method of determining comparators, then the Tribunal cannot do so on the basis of agreement on the point totals.
5 In this case, we find that the issue that arises with respect to the Order is how to determine which jobs are comparable. However, we do not find that the issue of the point totals arises out of the Order. We make this finding based on the application that was filed with Review Services, which asks only for assistanceonthequestionofdeterminingcomparability. Although the point totals was an outstanding issue between the parties, it is not an issue which arises out of the Order because the parties did not ask the Review Officer to deal with it.
6 That brings us squarely to the question ofhowbesttoproceedtohearanddecide the issue of how to determine comparability in a manner that is most useful to the parties. The Employer argues that it is up to the Applicant UFCW to demonstrate that the Order should not stand. On that theory, the Employer needonlyrespond to the evidenceand argumentsraisedbythe Applicant:ifthe Applicant fails to convince the Tribunal that the Order should be varied or revoked, then the Tribunal will confirm the Order.
7 This approach, however, does not fully recognise that hearings before the Tribunal with respect to Review Officers' Orders are de novo. The Tribunaldoesnotrelyonthe Review Officer's findings of fact, or reasons for decision. The Tribunal cannot always rely on the Order to determine the Tribunal's jurisdiction to hear the matter. We may havetohearfromthepartieswhatissuesthey intended to take to Review Services. That will determine what issues arise with respect to the Order and therefore, what the Tribunalhasthejurisdictiontohear. At that point theTribunalwillheartheparties'evidenceandargument on issues arising out of the Order. The Tribunal will then make its decision, and as a final step, will determine if the Tribunal's disposition results in confirming, revoking or varying the Order.
8 Because the Tribunal has not yet had to determine the question of how to measure comparability, we cannot decide at this point whether such an exercise can be done without first determining the values of the jobs in question. The parties were also reluctant to have the Tribunal embark on a determination of comparabilitywithout firstdetermining, orhavinganagreement,onthe content ofthe jobs and their relative values.
9 Therefore, we order the parties to endeavour to determine the final point totals for the job classes thatarein dispute. We reiterate that anysuchdisputemustbeconfinedtothemannerinwhichtheManual and the weightings as disclosed in Exhibit 7 are applied to the job classes. The mandatory posting date for this pay equity plan was January 1, 1990. In order that it can be completed without further delay, we strongly urge the parties to complete this process within 60 days. Failing agreement, the matter may be taken to Review Services, and if necessary, to the Tribunal.
10 The panelremainsseizedwithrespecttothe issue of how to determine comparability. In the event thata disputeoverthe finalpoint totals becomesthe subjectofanapplicationto the Tribunal, itwillbe listed before this panel, together with the comparability issue. We recognise that through the process of bargaining, the issues between the parties may be further refined, necessitating amended pleadings. The panel will consider requests to amend pleadings.
11 Finally, given the difficulties this case has highlighted, we strongly urge the parties to spell out to one another what steps each considers necessary in order for it to be bound to a pay equity plan.
DECISION OF MEMBER SUSAN GENGE, JUNE 10, 1992
1 I concur with the majority finding that the agreement on weightings, both within the subfactors and between the subfactors and the factors, reached by the Technical Design Committee, is binding on the parties.
2 I dissent from the decision of the majority on whether the issue of the point values is outstanding between these parties for the following reasons.
3 I agree that the Employer had representatives on both the Technical Design Committee and the Evaluation Committee, and that the Employer's representatives could not bind the Employer to the point values assigned by the Evaluation Committee. However, I am persuaded, by the evidence, that the Employeragreedthattheonlyoutstandingissuewas banding. If indeed there were other issues orifthere were other steps required before agreement on issues could be made by the Board, it was incumbent on the Board to make that clear to the UFCW. The evidence indicated that this never occurred.
4 A meeting between the parties was held on December 4, 1989 to determine which job classes were comparable. While most of the discussion was about banding, the issue of point scores was apparently raised by one of the Employer's representatives. Nevertheless, the parties agreed to focus on the issue of banding. They were unsuccessful in resolving their differences on this issue. The letter dated December 7thsetsout to the UFCW the issue thatthe Employer's representatives were planning totaketo the Board as a result of these deliberations. The issue was banding. This referral was dealt with in the Committee of the Whole Board.
5 A further meeting was convened in February between the parties. The results are set out in the letter ofFebruary6,1990 to the UFCW,whichconfirmedthattheBoarddidnotagreetotheUFCW'sposition on banding. Banding was the only issue mentioned in this letter.
6 These meetings and letters are critical to an understanding of what issues had and had not been resolved between the parties at that point. From the evidence the outstanding issue was banding. This was clearlythe UFCW's understanding of the stage reached. TheEmployerhadconfirmed,inwriting,thatthe outstanding issue was banding. If banding was not the only issue outstanding for the Employer, then it was the Employer's obligation to make this clear. It never did so.
7 The only oral evidence we have in relation to the events and results of the meetings is the UFCW's. The UFCW's clear understanding was that while the issue of the evaluation of several jobs and the point values assigned was raised, the Employer walked away from these concerns at both meetings. The Employer agreed to apply to Review Services for assistance - on the issue of banding. Furthermore, it is significant that this was a joint application by the parties. It is highly significant that no representative of the Employer was called to testify about what the Employer's intentions actually were, if indeed they differed from those indicated by their letters and actions.
8 The majority is prepared to draw an adverse inference from the failure of the Employer to call evidence concerning the ratification meeting in September 1989. A similar adverse inference must be drawn from the failure of the Employer to call any evidence from any representative of this Board concerning its understanding of what these parties had or had not agreed to; what issues the Board intended to take to Review Services; what decisions were taken at or what direction this Board gave its negotiators following the December Board meeting; what process the Board intended to follow in coming to an agreement with the UFCWonapayequityplan. Given the absence of evidence from the Employer, the documentary evidence and the credibility of the UFCW's witnesses, I find that the only outstanding issue between these parties was the issue they jointly decided to take to Review Services, that is, the issue of banding.
9 The majority relies ontheAgreedStatementofFactconcerningwhatwasraised at Review Services and concludes at paragraph 38 that the Employer was prepared to set aside the issues of weighting and point values, deal with the issue of how to determine appropriate male job class comparators and then, if necessary raise the issue again. With respect, there is simply no evidence about what the Employer intended to do either by raising the issues or by setting them aside.
10 From the Agreed Statement, it is clear that the issues were raised by a Board representative. It is clear that the UFCW objected. It is clear that the issues were set aside, on a without prejudice basis, at the suggestion of the Review Officer. We do not know why the Board raised its objections. We do not know why they then set them aside. We do not know what the Board's understanding of "without prejudice" was.
11 We do know that the UFCW objected to the Board raising additional issues at Review Services. The UFCW argued that they objected because those issues had already been resolved. Whenthe Board setasidetheadditionalissues"withoutprejudice", theUFCWunderstoodtheBoardtobewithdrawingthe issues without conceding that their position was incorrect or that the UFCW's position was correct.
12 The majority's use of the definition given inBlack'sLawDictionarydoesnotassistin answering the questions surrounding the Board's intention. We do not know that either the Review Officer or the Board relied on Black's definition when proposing or accepting the "without prejudice" approach.
13 While the Review Officer's order cannot be definitive, I think it is important to note her understanding ofwhathadbeenagreed between the parties. In her order she states:"Themethodofcollectingjobdata, the job comparison system and the point values allocated female and male job classes have been agreed to by the Union and the Employer" (emphasis added). This statement of the Review Officer is consistent with the UFCW's position.
14 We simply do not know what the Board intended by its actions at Review Services. Their failure to call any evidence to contradict the UFCW's, in the absence of any question of the credibility of the UFCW's witnesses, is fatal to their contention that any issue other than banding remained outstanding.
15 In pay equity negotiations it is critical that parties know that thepeople 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. Pembroke (1991), 2 P.E.R 157 (at paragraph 24). Unless a party makes clear that itsagreement issubjecttoratification, thatagreement is a valid agreement withinthe meaningofsubsection 14(4) of the Act. The obligation to make clear the precondition of ratification falls on the party claiming the precondition. Pembroke (1991), 2 P.E.R.157 (at paragraph 28)
16Finally, the majority decision relies on an alleged absence of ratification of the point totals by the Board. At paragraph 36 the majority claims that the point totals were "never submitted to the Board of Trustees for ratification". Again, we do not know if this was the case. There was no evidence from the Employer about what was actually discussed at the full Board meeting in December.
17We also do not know whether ratification of the point totals was a precondition set by this Board for final agreement on any pay equity plan. Indeed, we do not in fact know whether this Board intended to ratify the pay equity plan. The majority relies on the UFCW's statement that they expected that the Board would ratify the pay equity plan. However, no representative of the Board ever informed the UFCW's representatives that ratification of the whole plan was a Board requirement, let alone ratification of separate parts of the plan, let alone ratification of the point values assigned to job classes by a joint evaluationcommittee. The obligation of making clear this precondition for settlement was never met by this Board.
18There was no evidence from any Board representative that ratification of a pay equity plan or parts of a planwasaBoardrequirement. The UFCW's expectation was based solely on their past experience in collective bargaining. They expected the Board to ratify the pay equity plan because traditionally they ratified collective agreements. While the majority accepts the UFCW's evidence based on past practice in this area, they fail to accept the UFCW's evidence that the Board had withdrawn the other issues prior to going to Review Services, which was also based on the same past experience.
19Ian Reilly, chief spokesperson for the UFCW, testified that his understanding that the Board representatives had withdrawn the issues when they agreed to apply jointly on the issue of banding was based on his past dealings with the Board. He testified that because they stopped talking about the jobs and went on to banding, it meant that they had dropped their objection. He said it was common practice and past practicewiththisBoard: "We always dealt with each other that way". This evidence is certainly consistent with the letters writtenbyKennedytotheUnion and Review Services. It is consistent with the UFCW's objection to the Board raising the additional issues at Review Services. It is consistent with the Review Officer's order. I accept it.
20The majority decision would allow one party to keep the other bargaining in the dark without any possibility of knowing when agreement was reached on any steps of the pay equity bargaining process. Sucharesultwould impederationaland informedpayequitybargaining, contradictthe obligationtobargain in good faith imposed by the Act, and flyinthe face of a line of Tribunal decisions which have developed these principles.
21For all of these reasons, I find that the only issue outstanding between these parties is banding; that the issue before the Tribunal therefore, is the issue of the appropriate male comparators; and that the Tribunal should proceed to decide that issue on the basis of the point values already allocated to the job classes in question and agreed to by the parties.