Cited as:
Regina Exhibition Assn. Ltd. (Re)

Between
Saskatchewan Joint Board, Retail, Wholesale and Department
Store Union, Applicant, and
Regina Exhibition Association Limited and Doug Cressman,
Respondents
And
Regina Exhibition Association Limited, Applicant, and
Saskatchewan Joint Board, Retail, Wholesale and Department
Store Union, Respondent

[1997] S.L.R.B.D. No. 66
LRB File Nos. 256-97, 266-97, 308-97 & 321-97
LRB File No. 279-97

Saskatchewan Labour Relations Board
G. Gray, Chairperson, D. Bell and D. Ottenson, Members

December 1, 1997

Duty to bargain in good faith — Collective agreement — Board reviews factors to be considered in determining if party engaged in good faith bargaining and taking reasonable steps to conclude collective agreement.

Duty to bargain in good faith -- Disclosure -- Disclosure obligation arises when employer is asked question at bargaining table or when employer makes decision likely to impact on bargaining unit during term of collective agreement being negotiated.

Technological change — Duty to bargain in good faith — Workplace adjustment plan — Bargaining collectively with respect to workplace adjustment plan carries same degree of effort expected when parties negotiating collective agreement.

Technological change — Duty to bargain in good faith — Workplace adjustment plan — Simple exchange of proposals is insufficient — Parties must engage in serious, determined and rational discussion of proposals put forward — For bargaining to "fail" parties must be at genuine impasse, having exhausted all reasonable efforts to achieve plan.

Lock-Out — Definition — Defensive lock-out occurs when employer responds to strike activity by effecting lock-out — Board holds that use of defensive lock-out under circumstances did not constitute a violation of The Trade Union Act.

Remedy — Technological change — Board orders employer not to effect closure of business until s. 43 of The Trade Union Act complied with — If employer cannot lawfully continue to operate business, Board orders employer to continue to pay employees affected by technological change for duration of collective bargaining relating to workplace adjustment plan.

Unfair labour practice — Threatened closure — Board considers motives of employer when statements made during bargaining concerning closure of business — When employer takes concrete steps, which are not motivated by anti-union animus, to initiate closure of a business, employer has obligation to disclose closure information to union.

The Trade Union Act, ss. 2(j.2), 11(1)(c), 11(1)(i) and 43.

Appearances:

For the Applicant: Larry Kowalchuk.
For the Respondents: Larry Seiferling, Q.C.

REASONS FOR DECISION

Background:

¶ 1 The Union represents employees at the Silver Sage Casino ("Casino") which is operated by the Regina Exhibition Association Limited ("REAL") in Regina. On August 12, 1997, REAL gave notice to the Union and its employees that it intended to close the Silver Sage Casino on November 22, 1997. The closure will result in the layoff of 135 casino workers, 40 employees in the operations bargaining unit and 23 employees in the food services bargaining unit. The operations and food service employees are represented by the Union in separate bargaining units.

¶ 2 In LRB File No. 256-97, the Union asked the Board to find REAL in violation of ss. 11(1)(a) and (c) of The Trade Union Act, R.S.S. 1978, c. T-17, for failing to disclose its intention to close the Casino to the Union in the course of bargaining the operations agreement and the casino agreement. The Union alleged that it questioned REAL during negotiations of the operations and casino agreements on numerous occasions with respect to the closure of the Casino. As a remedy, the Union asked the Board to order REAL to open the operations agreement in order to allow the Union to negotiate the impact of the Casino closure. The Union also requested that the Board order REAL to compensate the Union for the time spent so far in negotiating revisions to the casino agreement. In the reply to this application, REAL asserted that it disclosed all information known to it at the time of any request from the Union.

¶ 3 In LRB File No. 266-97, the Union alleged that REAL had effected a technological change at the Casino within the meaning of s. 43 of the Act and had refused to acknowledge that it was obligated to adhere to the provisions of the Act respecting this change in its operations. The Union also claimed that REAL violated ss. 3, 11(1)(c) and 43 of the Act. On October 31, 1997, the Board issued Reasons for Decision finding that the closure did constitute a technological change within the meaning of s. 43 of the Act.

¶ 4 The remedial portion of this application was left for argument at the hearing of the remaining applications. The remedial orders requested by the Union include: (a) a declaration that the closure is a technological change and an order requiring REAL to comply with s. 43; (b) an Order requiring REAL to negotiate a workplace adjustment plan with the Union by meeting within a specified time frame; and (c) an Order to stop the implementation of the closure until REAL has satisfied the Board that it has complied with s. 43 of the Act. REAL's reply with respect to the remedial aspect of the Union's application asserted that it had complied with the requirements of s. 43 of the Act by giving the Union advance notice of the change and by agreeing to negotiate on any proposal the Union wished to present.

¶ 5 In LRB File No. 279-97, REAL alleged that the Union was in violation of s. 11(2)(c) of the Act by refusing to execute the formal agreement reached between it and the Union on June 4, 1997 with respect to the operations bargaining unit. The Union replied by asserting that the parties are not in agreement as to the exact terms of the agreement reached on June 4, 1997 and claiming that the agreement that was ratified by its members was not the same agreement as was contained in REAL's proposed formal collective agreement.

¶ 6 In LRB File No. 308-97, the Union brought a further application in which it alleged that REAL breached ss. 11(1)(a), (c) and 43 of the Act. The Union claimed that after it had requested to continue bargaining the casino agreement, and after REAL had indicated to this Board in the affidavit material filed on LRB File No. 266-97 that it was prepared to discuss any proposals the Union made dealing with the closure, REAL sent the Union a letter stating that it would not accept any proposals from the Union submitted and dated after November 6, 1996. REAL replied to this application by stating that it did not intend to agree to any proposal submitted after November 6, 1996 but it had and did intend to meet with the Union for the purpose of bargaining collectively.

¶ 7 The remedies sought on LRB File No. 308-97 include: (a) a declaration of an unfair labour practice under ss. 11(1)(a), (c) and 43 of the Act; (b) an Order directing REAL to remain open until an agreement is reached on the outstanding proposals and/or an arbitrator is appointed to resolve the outstanding proposals prior to closure; (c) an Order compensating the Union for time spent so far in negotiations; and (d) an Order requiring compensation for the Union's legal fees. In its reply, REAL stated that the remedies requested are outside the Board's statutory jurisdiction.

¶ 8 In LRB File No. 321-97, the Union claimed that REAL violated ss. 3, 11(1)(a), (e), (f), (j), (m) and 12 of the Act by disciplining employees at the Casino who engaged in lawful strike activity. REAL replied that it had not disciplined the employees for strike related activity. The Union requested that the Board issue an Order directing REAL to restore the wages and benefits of employees who had been disciplined for engaging in strike activity. This matter was the subject of an interim application, as well as argument on the final application. The Board will deal with the application as a final application in these Reasons.

Preliminary Matter

¶ 9 At the conclusion of the arguments on the applications, counsel for REAL asked the Board to rule on the issue of whether or not the affidavits filed with the various applications constituted evidence on the main applications. As a general matter, the Board will refer to all the material filed on any application in its final Reasons, unless the parties have agreed otherwise during the course of the hearing. In this hearing, there was no explicit agreement to exclude the affidavit material. Affidavit material, however, will always take second place to evidence that is tendered through witnesses at the hearing who are subject to full cross-examination. In this instance, the evidence that was presented to the Board through witnesses at the hearing formed the primary basis of our fact finding, with the affidavit material being of assistance in determining sequence and filling in minor gaps in the documentary evidence presented at the hearing.

¶ 10 The Board also notes as a matter of record that certain agreements were tendered in evidence as Board exhibits. These agreements were entered into between REAL and Saskatchewan Gaming Commission ("SGC") and Saskatchewan Liquor and Gaming Authority ("SGLA"). The agreements were produced through subpeonas issued by the Board. Facts The Union is certified for four bargaining units at REAL. The largest unit is called the operations group; it constitutes the main bargaining table. In addition, the Union bargains for a group of employees at the race track, another group at the Casino and a group of food service workers.

¶ 11 Negotiations for a new collective agreement with respect to the operations group commenced in the spring of 1996. Doug Cressman, General Manager, was REAL's main spokesperson at the operations bargaining table; Mark Hollyoak, Union Representative, was the chief negotiator for the Union. In October, 1996, REAL requested that the Union table its monetary proposals which the Union agreed to do.

¶ 12 At the bargaining meeting subsequent to the meeting at which the Union tabled its monetary proposals, REAL advised the Union that it was unable to respond to the monetary proposals at that time because it was negotiating an agreement with SLGA and SGC. Until an agreement with the two government agencies was reached, REAL was unsure of its financial situation and was unable to commit itself to a monetary package at the operations table.

¶ 13 In January of 1997, Mr. Hollyoak asked Mr. Cressman at the operations bargaining table how the negotiations with SLGA and SGC were proceeding. Mr. Cressman told Mr. Hollyoak that there were three matters that remained outstanding. When Mr. Hollyoak asked what those issues were, Mr. Cressman would not disclose them to the Union. At the same meeting, REAL did not respond to the Union's monetary proposals except to say that it was still unsure of its financial picture.

¶ 14 According to Mr. Hollyoak, during a bargaining meeting held on April 9, 1997, Mr. Cressman informed the Union that REAL had given up on signing an agreement with SLGA and SGC and would proceed to bargain with respect to the monetary proposals without further delays. In his testimony, Mr. Hollyoak noted that the date - April 9, 1997 - stuck in his mind because he later learned that REAL had concluded an agreement with SLGA and SGC on April 9, 1997. He did not become aware of the April 9, 1997 agreement until after a tentative settlement had been reached between REAL and the Union with respect to the operations bargaining unit. Mr. Hollyoak learned of the April 9, 1997 agreement after receiving from an anonymous source a copy of what appeared to be a letter from the solicitor for REAL to Gord Staseson, then Acting President and CEO of SGC. The letter stated: "... it is our client's position that an Agreement was, in fact, arrived at on April 9, 1997, following which the Agreement in final form was prepared by your solicitors and forwarded to us for our Board approval and execution on April 10, 1997." The significance of the agreement between REAL, SLGA and SGC will be discussed later in these Reasons.

¶ 15 Mr. Cressman recalled that at the April 9, 1997 bargaining meeting with the Union he said words to the effect that they would now bargain the monetary package and would do so on the basis of what they knew at that time.

¶ 16 After the April 9, 1997 meeting, negotiations between REAL and the Union progressed with an exchange of proposals at the end of May of 1997. Mr. Hollyoak testified that around this time he again asked Mr. Cressman if an agreement had been reached between REAL, SLGA and SGC. Mr. Cressman told Mr. Hollyoak that a couple of matters remained outstanding. Mr. Hollyoak asked him for details of what items remained outstanding. According to Mr. Hollyoak, Mr. Cressman refused to disclose the matters to the Union.

¶ 17 In May, 1997, the Union and REAL exchanged strike and lock-out notices. On May 28, 1997, in response to work slowdowns, REAL locked out the operations employees. On June 4, 1997, the parties reached a tentative agreement on the operations unit and employees returned to work under a back to work agreement. The Union recommended the settlement to its members who ratified the agreement shortly after returning to work.

¶ 18 The Union then sent REAL its draft of a formal collective agreement which incorporated the terms of settlement. REAL responded by sending the Union its own version of a formal collective agreement. According to Mr. Hollyoak, REAL's version of the final agreement contained some corrections to the wording of the Union's formal agreement that he agreed were proper corrections to make, but it also contained some wording that was incorrect. Mr. Hollyoak testified that he fixed all the matters that required fixing and sent the agreement back to REAL for approval. Since forwarding the amended version of the formal agreement back to REAL, Mr. Hollyoak indicated that he had not heard back from REAL, except for one conversation with Bob Osadchy, Casino Manager, who suggested that they have a meeting on the matter.

¶ 19 Starting in November of 1996, the Union and REAL were also bargaining with respect to the Casino. Mr. Osadchy was the chief negotiator for REAL at this table. The main issue at this table centred around REAL's proposal for block scheduling of part-time employees. REAL indicated to the Union that if it had some agreement on this issue, it would be willing to consider other Union proposals. Meetings for the purpose of bargaining this agreement spanned a time frame from November, 1996 to July 21, 1997.

¶ 20 The Union took a strike vote among the employees of the Casino and served strike notice on May 12, 1997. Mr. Hollyoak testified that the strike notice was given to permit all unionized employees at REAL to engage in strike activity in support of the operations table. The operations table was viewed as the trend setting agreement which would ultimately impact on the settlement of the casino bargaining table.

¶ 21 During bargaining for the casino agreement, the Union heard continuous rumours that the Casino was going to close. Mr. Hollyoak testified that Mr. Osadchy was asked several times during bargaining if the rumour was true. Mr. Osadchy would check with Mr. Cressman and would come back to the table with word that there would be no closure of the Casino and that no agreement had been reached between REAL, SLGA and SGC.

¶ 22 Specifically, Mr. Hollyoak recalled that he had asked Mr. Osadchy in March of 1997 if it was true that Casino Regina, the main competitor of the Casino, was developing software to take over the slot machines then operating at the Casino. Mr. Osadchy denied the rumour and replied that the Casino would operate as usual.

¶ 23 Again, in May of 1997, Mr. Hollyoak raised questions regarding rumours of closure with Mr. Osadchy at a union-management meeting. He was again reassured that REAL was not considering closing the Casino. At one point during the course of the casino negotiations, REAL posted a notice at the Casino urging employees not to worry about the rumours of closure and reassuring them that the Casino was not closing. Mr. Hollyoak testified that REAL denied the closure possibility as early as January of 1997 and as late as July 21, 1997.

¶ 24 Mr. Hollyoak also read a newspaper article in the Regina Leader-Post which provided details of the negotiations that were on going between REAL, SLGA and SGC. In the article, it was reported that the parties were considering three options: (a) REAL would operate the Casino with SGC taking over the slot machines; (b) REAL would operate both the table games and the slot machines; (c) REAL would close and be paid $2.6 million per year. After reading the article, Mr. Hollyoak asked Mr. Osadchy which option REAL was pursuing. He was told by Mr. Osadchy that option (b) was the option being pursued - that is, that REAL would continue to operate both table games and slots.

¶ 25 At a bargaining meeting held on July 21, 1997, the Union agreed to put REAL's proposal on block scheduling to the membership for a vote in order to test the members' support for REAL's proposal. However, prior to taking the vote, Kathleen Hewitt, the shop steward at the Casino, received information that led her to believe that REAL had decided to close the Casino and was preparing to make the announcement of closure on August 12, 1997. The information Ms. Hewitt received was contained in a computer document addressed to a contractor of the Casino in which the closure of the Casino was discussed. Ms. Hewitt approached Mr. Osadchy with the information and asked him if it was true. After checking with Mr. Cressman, Mr. Osadchy told Ms. Hewitt that Mr. Cressman would not confirm or deny the information.

¶ 26 Mr. Cressman's response to the Union's inquiry was the first formal indication the Union received from REAL that confirmed the closure rumour. Up until that time, the Union had been reassured that the Casino would remain in operation and it was in this context that the Union negotiated the collective agreement. Mr. Hollyoak was obviously frustrated with having spent many months of bargaining on the scheduling issue which, in the end result, was rendered meaningless and irrelevant as a result of REAL's decision to close.

¶ 27 On July 25, 1997, the Union received a letter from Mr. Cressman which indicated that he was reviewing the options for the Casino and would let the Union know when he and the Board had reached a decision. This letter was written in response to the persistent rumours of closure and was received by the Union three days before the Union became aware through Ms. Hewitt that closure was going to be announced on August 12, 1997.

¶ 28 On August 12, 1997, the Union received notice from REAL that the Casino would close on November 22, 1997 and that its members would be out of work on that day. In addition, some members of the operations unit and the food services unit would also be laid off as a result of the Casino closing. The notice of closure read as follows:

	I regret to inform you that the Silver Sage Casino will be closing effective November 22, 1997.
	As this will result in the termination of the employment of more than ten employees, in accordance with Section 44.1 of The Labour Standards Act, I am giving you notice of the following:

Number of employees whose employment will be terminated:

	In-scope Casino Employees:	135
	Out-of-scope Employees:	10

In addition, as a result of the Casino closure, the following number of Regina Exhibition Park employees will receive layoff notices and will be given the opportunity to exercise their seniority rights:

	Operations Employees:	40
	Food Services Employees	23

All numbers are approximate.

Effective date of termination/layoff:

November 22, 1997

Reason for termination/layoff:

Permanent closure of Silver Sage Casino.

	We do not believe that the closure of the Casino constitutes a technological change within the meaning of The Trade Union Act, but in any event we are not closing the Casino for one hundred and three days (103) and all the information required by Section 43(3) of The Trade Union Act is included in this notice. We are also prepared to meet with you to discuss the implementation of the Casino closure.
	Please contact me if you have any questions regarding the foregoing.

¶ 29 After receiving notice of closure, the Union filed the various unfair labour practice applications under consideration. On August 12, 1997, the Union also served a notice to bargain on REAL pursuant to s. 43(8) of the Act as follows:

	It is our belief that the closure of the Silver Sage Casino does constitute technological change under Section 43 of The Trade Union Act and we are hereby requesting official notice in compliance with the Act and failure to provide such notice will cause us to file an application with the Labour Relations Board to enforce the employees' rights contained in The Trade Union Act with respect to technological change.
	The notices that were given on August 8, 1997 to Operations staff are over and above any usual layoff that occurs in the fall and we consider these to be associated with the closure of the Casino and subject to Section 43 of The Trade Union Act. We request that you forward technological change notice on behalf of those employees. Failure to do so will require us to file an Unfair Labour Practice with the Saskatchewan Labour Relations Board.
	Please advise.

¶ 30 REAL responded to the Union's request to bargain on August 14, 1997 as follows:

	With reference to the recent announcement regarding the closure of the Silver Sage Casino and that we are currently involved in negotiating a new Casino Collective agreement, I suggest that we agree to apply the terms of the old collective agreement until November 22, 1997.
	I would also suggest that we cancel our negotiations meeting planned for August 26, 1997.
	Please advise.

¶ 31 The Union responded to REAL in the following terms on August 19, 1997:

	We are not prepared to cancel our negotiation meeting that is scheduled for August 26, 1997.
	Even though most of the proposed revisions are no longer relevant, there are four directly related to closure and the issue of retroactive pay, etc. Unless the employer is willing to concede technological change and enter into negotiations with respect to a workplace adjustment plan, we will continue the process of negotiations on existing relevant proposals.
	Please advise.

¶ 32 Mr. Osadchy responded to the request to meet on August 26, 1997 by notifying the Union that he was unable to meet on that occasion due to his vacation schedule.

¶ 33 On August 25, 1997, REAL responded to the Union's request to bargain the technological change as follows:

	We accept your letter as an indication that you wish to negotiate terms and conditions for Casino employees affected by the closure. We are prepared to have discussions with you on any item you wish to discuss at this time.
	As we are already in bargaining on the Casino Collective Agreement, you may forward your proposals to us at this time or arrange a meeting date to provide us with your proposals.
	Although we do not feel that this is a technological change under The Trade Union Act, we are prepared to follow the above procedure that we may deal with the issues raised by the closure. As we have a Collective Agreement that has expired, and we are already under a duty to negotiate with you, we have no objection if you amend your position to deal with any issues you wish to discuss with us.
	We await your early response in order that discussions can begin quickly.
	(Emphasis added)

¶ 34 Subsequently, the Union wrote to request that REAL assign 20 full days prior to closure for negotiations. The Union and REAL met on September 15, 1997 at which time the Union presented to REAL a proposed Workplace Adjustment Plan as follows:

1.		In exchange for an orderly closure, no strike activity, etc, the Employer and the Union agree to submit all unresolved issues as of October 15, 1997 to binding Arbitration. The parties shall agree on a chairperson or, failing agreement, shall ask the Minister of Labour to appoint a chairperson. The arbitrator, after hearing from the parties, shall have the power to decide and enforce the implementation of any unresolved issue.
2.		The Employer and the Union shall form a Workplace Adjustment Committee with one representative from the Employer and one representative from the Union. The Committee shall be responsible for overseeing all aspects of the workplace adjustment plan. The Employer shall pay for all costs associated with the operation of the Committee including but not limited to the Union nominee's wages at 40 hours per week at their regular rate. The committee shall be formed as of September 15, 1997 and shall run for one month after the closure date of the Casino.
3.		Any person whose employment is terminated or affected for any reason between August 12, 1997 and the closure date of the Casino shall receive in addition to any other money, four weeks' pay for every year of service. The amount of weekly pay shall be established by averaging the employee's weekly earnings retroactive for a period of one year from closure excluding all leaves or periods of no work for any reason. The Employer shall pay the severance in the manner requested.
4.		Any person whose employment is terminated or affected for any reason between August 12, 1997 and the closure date of the Casino shall be entitled to access a guaranteed job placement plan and unlimited access to outplacement counselling. The Employer shall pay the full cost of such plans.
5.		The Employer, the Union and the Gaming Corporation shall enter into an agreement with respect to employees moving to Casino Regina. The agreement shall be in place by October 15, 1997.
6.		Any person whose employment is terminated or affected for any reason between August 12, 1997 and the closure date of the Casino shall be entitled to enrol in any educational upgrading or training course(s) and the Employer shall pay the full cost of such education upgrading or training for a period of two years after the closure date of the Casino.
7.		All employees shall receive a 5 percent wage increase retroactive to the expiry of the Collective Agreement.
8.		The Employer shall pay the full cost of relocation for any person whose employment is terminated or affected for any reason between August 12, 1997 and the closure date of the Casino.
9.		The Union reserves the right to forward additional proposals on all matters related to the closure of the Casino.

¶ 35 REAL replied to the Union's proposal through two letters dated September 19, 1997. The first letter stated as follows:

	With reference to your document "RWDSU - Silver Sage Workplace Adjustment Plan" tabled on September 15, 1997. It is our position that our discussions are not based on technological change as outlined in The Trade Union Act as this question has not yet been decided by the Labour Relations Board as it pertains to the closure of the Silver Sage Casino.
	Based on the above we wish to respond as follows:

1.		There is nothing in the current Collective Agreement regarding binding arbitrations and we are unwilling to accept this proposal.
2.		We cannot agree to this proposal.
3.		We cannot agree to this proposal.
4.		We cannot agree to this proposal.
5.		We cannot agree to this proposal.
6.		We cannot agree to this proposal.
7.		We cannot agree to this proposal.
8.		We cannot agree to this proposal.
9.		We cannot agree to this proposal.

	Our next meeting is scheduled for Monday, September 22, 1997 at 9:30 am in the Agridome Administration office Board Room.
	Please advise how you wish to proceed.

¶ 36 The second letter read as follows:

	With reference to your correspondence of August 19, 1997 concerning the continuation of collective bargaining on existing relevant proposals, I wish to advise that, while this entire process appears to be moot, bearing in mind the closure of the Casino on November 22, 1997, we are none-the-less willing to continue discussions.
	Please be advised that the employer is not willing to accept or entertain any additional proposals submitted by the Union and dated after November 6, 1996.
	Please advise.

¶ 37 Following this exchange of correspondence, the Union decided to exercise its right to strike by having its members refuse to wear their uniforms to work. The Union advised REAL that members would be engaging in this form of strike activity. When employees appeared for work on September 23, 1997, REAL sent them home. Some employees returned to work in their uniforms and were permitted to work; others decided to remain at home and not attend work. Employees who did not return to work did not get paid for the day. No other action was taken by REAL in response to the Union's actions. When Mr. Hollyoak asked if REAL was disciplining employees or locking them out, Mr. Osadchy advised that he was implementing REAL's policy which required attendance at work in uniform.

¶ 38 After the September 15, 1997 meeting between the Union and REAL, the parties met on September 22 and 29, 1997, and October 7, 1997. On October 9, 1997, REAL made a counter-proposal to the Union's workplace adjustment plan as follows:

With reference to our October 7, 1997 meeting on the above mentioned subject and your submitted proposals, we respond as follows:

1.		The employer will offer a 3% increase for all current employees effective on the signing of a new collective agreement.
2.		We cannot agree to this proposal.
3.		You are to provide additional details to this proposal.
4.		We cannot agree to this proposal.
5.		We propose a joint meeting with the Saskatchewan Department of Education, Federal manpower and employment insurance to explore potential options available to Silver Sage employees.
6.		The proposal has been discussed by myself with Gord Staseson of SGC who has indicated that they are not receptive to such an agreement.
7.		We are receptive to entering into discussions concerning the leasing of the Silver Sage property.
8.		We are currently meeting to attempt to mitigate the impact of the Casino closure upon casino employees, therefore this proposal has no relevance.
9.		Employees who have indicated an interest in a one day seminar with Price Waterhouse may opt to receive a lump sum payment of $150.00 provided they have registered by the September 12, 1997 cutoff date.
10.		We have responded to this grievance.
11.		We will consider any additional proposals.

Following your review of our response please contact me to set up a meeting date.

¶ 39 Mr. Hollyoak felt there was little point in meeting with REAL over the workplace adjustment plan as REAL did not appear to want to reach any agreement on closure and continued to maintain their position that the closure was not a technological change. As far as Mr. Hollyoak was concerned, REAL managed to dupe the Union by getting the operations table resolved before the announcement of the closure of the Casino. Mr. Hollyoak believed that had the Union been properly informed in April of 1997 of REAL's proposed agreement with SGC and SLGA, the Union could have brought the strength of all its bargaining power at REAL to bear on negotiating a fair workplace adjustment plan for the Casino workers. The delay in advising the Union put it at a bargaining disadvantage because REAL's busy season occurs in the summer months. A strike in the fall or winter would not bring the same kind of economic pressure on REAL as a summer strike.

¶ 40 Mr. Cressman testified on behalf of REAL. Mr. Cressman set out for the Board the general relationship between REAL, SGC, SLGA and Casino Regina, and he gave detailed evidence as to the course of the negotiations between REAL and the government agencies that led up to the announced closure of the Casino. In general, he described a history of stormy negotiations that began with the Government of Saskatchewan's proposal to open its own casino in Regina in January of 1996. REAL has operated a gaming operation in various forms on the Exhibition grounds for 25 years. It is licensed to operate through SLGA, which is the licensing authority and supplier of VLT's. The Casino operation was the largest generator of net income for REAL and was central to its on-going financial health.

¶ 41 When the Government announced its intentions to own and operate Casino Regina, REAL decided to continue to operate its Casino in competition with Casino Regina. At the time, REAL invested $1.5 to $1.7 million in renovations to make the Casino more attractive to its gambling patrons. REAL sought and received assurances from the Government that the opening of Casino Regina would not affect REAL's financial picture and to that effect, the Government and REAL entered into an agreement that guaranteed REAL an annual net profit of $2.2 million to be paid by either SLGA or SGC until the opening of Casino Regina. In order to fulfil this guarantee, the Government acted through SGC, the crown corporation established to operate casinos, and entered into an Interim Slot Machine Site Contractor Agreement with REAL whereby SGC provided slot machines for REAL to operate in the Casino in return for a guaranteed payment to REAL of $.525 million net profit related to the operation of the slot machines and $2.2 net profit related to the operation of REAL's table games until the opening of Casino Regina.

¶ 42 When the interim agreement terminated on the opening of Casino Regina, there were several issues outstanding between REAL, SLGA and SGC. The parties disagreed over the amounts that were then owing to REAL from SGC and SLGA pursuant to the two agreements; SLGA and SGC had not made payments in accordance with the agreement; and REAL complained that SGC did not provide it with the number or type of slot machines that it wanted. Mr. Cressman observed that SLGA and SGC were under the gun to make Casino Regina a financial success. REAL felt that the two agencies' failure to fulfil their obligations under the agreements was intended to put financial pressure on REAL in the hope that it would close the Silver Sage Casino.

¶ 43 Through all of 1996 and until June of 1997, REAL was without an agreement with SGC on the slot machines. It entered into negotiations with SLGA and SGC in 1996 in order to finalize the sums owing under the interim agreement and to conclude a new slot machine site agreement with SGC. These negotiations were central to the continued ability of REAL to operate its Casino and to finance its other operations, and both the Union and REAL were aware of the significance of the agreement on the overall ability of REAL to function.

¶ 44 Mr. Cressman testified that during the negotiations with SLGA and SGC, which he described as tough negotiations, the government agencies insisted that the new agreement contain a termination provision. This provision ultimately took the form of a notice clause which permitted either party to give 100 days notice of its intention to terminate the agreement. Upon termination, SGC and SLGA agreed to pay REAL $2.825 million in its first year of closure and $2.6 million per year for a further 29 years, contingent, among other things, on the continued operation of a casino in the location of Casino Regina. The first version of the agreement, and the one that was agreed to by REAL negotiators on April 9, 1997, continued the payment to REAL on closure for as long as a casino operated on the Casino Regina site.

¶ 45 The agreement otherwise provided that SLGA and SGC would make annual payments of $3.5 million to REAL for operating the slot machines owned by SGC and in satisfaction of the Government's commitment to assist in maintaining REAL's pre-Casino Regina income. The commitment to pay $3.5 million annually was made for a 10 year term to be renewed for successive 10 year terms without change, unless the agreement was terminated by the notice provision.

¶ 46 Mr. Cressman explained that when the negotiators for SLGA and SGC were adamant in obtaining a termination clause in the agreement, he was advised by the solicitor for REAL to calculate all costs of closure and to negotiate those costs into the first year payment. Mr. Cressman indicated that an extra sum of $225,000 was added to the first year payment to take into account the closure costs. Part of the costs related to severance costs of employees, which were calculated on the basis of the cost to REAL of paying severance in lieu of full notice to those employees who would be entitled by law or agreement to more than 100 days notice of the termination of their employment based on current costs. No generic formula was negotiated with respect to determining severance costs at some time in the future. Only the actual liability under current laws and agreements were used to calculate REAL's severance costs. REAL's first position with respect to the costs of closure was to allow for severance pay for all employees whose employment would be terminated in lieu of notice. This position, however, was rejected by SGC. The discussions on the costs of closure took place in February or March, 1997, during which time REAL was also engaged in bargaining the operations and the casino agreements with the Union.

¶ 47 As indicated, an agreement in principle was reached between REAL, SGC and SLGA on April 9, 1997. The Board of Directors of REAL was asked to approve and sign the agreement on April 10, 1997, which they did. The agreement required Treasury Board and Cabinet approval and it was understood by REAL that no final agreement could be entered into without such approval. It was reported by SGC to REAL shortly after April 9, 1997 that the agreement would not be approved by Cabinet unless a sunset clause was negotiated with respect to the payment to REAL on closure. Under the April 9, 1997 agreement, SLGA and SGC agreed to pay REAL $2.6 million for as long as a casino operated at the Casino Regina site. Further negotiations ensued between the parties which resulted in the Board of Directors of REAL agreeing to cap the closure payment at 30 years. The agreement was finally signed by all parties on June 27, 1997.

¶ 48 Despite the amount of attention that was focused on the termination provision in the negotiations between REAL, SGC and SLGA, Mr. Cressman was adamant that no discussion occurred between REAL and SGC negotiators on the possibility of SGC or SLGA exercising the termination option. According to his testimony, the first time the possibility of exercising this option was raised was on June 27, 1997 at the signing meeting, when Mr. Staseson, Chief Executive Officer of SGC, requested a meeting with REAL to discuss the termination option. According to Mr. Cressman, when the parties met on July 2, 1997, SGC requested that REAL give notice to SGC and SLGA that it wished to terminate the agreement.

¶ 49 A closure proposal was put before REAL's executive committee and eventually its Board of Directors. On August 11, 1997, the Board of Directors passed a resolution that stated: "THAT Regina Exhibition Association Limited serve the Saskatchewan Gaming Corporation Notice of Termination of the Silver Sage Casino as soon as possible." Prior to the Board resolution, the management staff of REAL had taken all steps that were required to be taken in order to implement the decision immediately on receiving Board approval. It was through this preparation work that the Union became aware of the possibility of closure.

¶ 50 Mr. Cressman acknowledged that the Union had requested information at the operations bargaining table about the agreement between REAL, SGC and SLGA. He also acknowledged that REAL had advised the Union in the fall of 1996 that it would be unable to respond to the Union's monetary proposals until the agreement with SGC and SLGA was finalized.

¶ 51 Mr. Cressman maintained that closure of the Casino was not considered until July 2, 1997. He testified that he was surprised by SGC's request on June 27, 1997 for a meeting to discuss the termination option. He was also of the view that all of his answers to questions asked at the table were truthful, that is, REAL had not finalized an agreement with SGC and SLGA until June 27, 1997; REAL planned to continue to operate the Casino; and REAL had not proposed the closure of the Casino until its decision on August 11, 1997. Mr. Cressman justified his response to Mr. Hollyoak at the bargaining table on April 9, 1997 by saying that until Cabinet approval was obtained he did not feel confident that REAL had a final agreement with SGC and SLGA. In addition, he did not believe that SGC or SLGA would exercise the termination option, although he acknowledged that the option could be exercised as soon as the agreement was signed. He was also of the opinion that if he discussed the agreement in detail at the bargaining meetings, the Union might accuse him of threatening to close the Casino which might constitute an unfair labour practice under s. 11(1)(i) of the Act.

Positions of the Parties

¶ 52 Counsel for the Union argued that s. 11(1)(c) of the Act required an employer to respond honestly to questions asked in bargaining and to disclose on its own initiative any decisions that it had made that might impact the bargaining unit. The Union argued that REAL misled the Union by answering the Union's questions relating to the agreement with government and the Casino closure untruthfully at both the operations and the casino bargaining tables. In support of the disclosure proposition, counsel referred to Iberia Airline of Spain and Canadian Union of Public Employees, Local 4027 (1990), 13 CLRBR (2d) 224 (CLRB) which holds that the duty to bargain in good faith entails an obligation on the part of REAL and the Union to engage in rational and informed discussion with a view to concluding a collective agreement. He also referred to the Canada Labour Relations Board decision in General Truck Drivers and Helpers Local Union No. 31 and Yukon Freight Lines Limited et al. (1988), 75 di 164 (CLRB) for a summary of the case law that required a party to a collective bargaining relationship to answer questions asked at the bargaining table honestly and to disclose decisions already made that might have an impact on the bargaining unit. He also relied on decisions of this Board in United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada v. Provincial Maintenance Ltd. et al., [1986] Feb. Sask. Labour Rep. 65, LRB File No. 117-85; Saskatchewan Government Employees' Union v. Government of Saskatchewan, [1989] Winter Sask. Labour Rep. 52, LRB File Nos. 245-87 & 246-87; Construction and General Workers Union. Local 890 v. Midway Sales (1979) Ltd., [1988] Jan. Sask. Labour Rep. 35; LRB File No. 302-86; and Construction and General Workers, Local 890 v. Interprovincial Concrete Ltd., [1991] 1st Quarter Sask. Labour Rep. 85; LRB File No. 077-89, all of which adopt and support the propositions set forth in the Canada Labour Relations Board decisions cited above.

¶ 53 Counsel argued that, on the facts, the timing of REAL's conduct was key to a finding of bargaining in bad faith. REAL delayed advising the Union of the possible termination of the slot machine site agreement until after the operations agreement was ratified. Prior to the settlement of the operations agreement, the Union was in a position to stop all work at REAL as a result of having conducted strike votes among all four bargaining units. REAL's conduct created an imbalance in the respective bargaining powers of REAL and the Union.

¶ 54 As a result of REAL's conduct, the Union submitted that the remedy ordered by the Board must take into account the loss to the Union. Had the Union been properly informed of the April 9, 1997 agreement, it would have used its bargaining power to secure better agreements for both the operations group and the casino employees. REAL's failure to bargain in good faith illegally removed the Union's bargaining strength which peaked in the summer months. Counsel argued that the Board must fashion a remedy for the failure to bargain by putting the Union back in the position it should have been in before the breach. In this instance, counsel noted that the ability of the Union to regain its bargaining strength has been destroyed by REAL's conduct. The only remedial order that may be effective is an order requiring REAL to compensate the employees who are affected by the closure.

¶ 55 With respect to REAL's application against the Union for failing to execute the formal collective agreement with respect to the operations table, counsel argued that the matter should be dismissed for lack of evidence. REAL led no evidence with respect to the matters that were agreed to at the bargaining table and failed to establish that the formal agreement submitted to the Union was in fact the agreement reached at the table. In addition, the Union submitted that it was not required to sign the formal agreement when the negotiations that led up to it were marred by bad faith bargaining. The Union is entitled to ask the Board to order REAL to reopen the agreement to permit bargaining with respect to matters not disclosed in bargaining.

¶ 56 The Union also alleged that REAL failed to adhere to the technological change provisions contained in s. 43 of the Act. Counsel submitted that REAL refused to bargain a workplace adjustment plan as required by s. 43(8.1) of the Act. This failure occurred when REAL refused to recognize the closure of the Casino as a technological change within the meaning of the Act and when it refused through its September 19, 1997 letter to the Union to discuss any proposals with the Union that had been made after November 6, 1996. The evidence demonstrated that REAL was not prepared to accept its obligation to bargain under s. 43 of the Act. Counsel pointed out to the Board that s. 43(8.1) of the Act required that the parties meet for the purpose of bargaining collectively (which is defined in s. 2(b) of the Act as "negotiating in good faith") with respect to a workplace adjustment plan. The Union asserted that REAL failed on both accounts under s. 43(8.1) of the Act, that is, it did not bargain in good faith and it refused to bargain for the purpose of reaching a workplace adjustment plan.

¶ 57 On the remedial side of the s. 43 application, counsel for the Union argued that s. 43(10) of the Act only permits an employer to effect a technological change if: (a) a workplace adjustment plan has been concluded with the Union, or (b) the Minister of Labour has been served with a notice advising that the parties have bargained collectively but have failed to conclude a workplace adjustment plan. Counsel noted that "bargaining collectively" is a pre-condition to the provision of notice to the Minister. Hence, until such bargaining had taken place, notice could not be provided to the Minister and the change could not be implemented.

¶ 58 The Union also argued that the operations and food services employees were also part of the group of employees that should be considered part of the significant number who were affected by the technological change. Counsel seemed to argue that the Board could find that the technological change obligations arose under all three bargaining relationships - that is, the casino, the operations and the food services tables.

¶ 59 Finally, the Union submitted that REAL's action in sending employees home without pay when they arrived at work without their uniforms constituted discipline for union activity. The Union was engaged in a proper form of strike activity; REAL was not purporting to lock-out employees when it sent them home. The Union characterized REAL's action as discriminatory discipline which was meted out by REAL on the improper grounds of union activity.

¶ 60 Counsel for REAL argued that REAL complied with the Act in all respects. REAL took the position that it disclosed all that it was required to disclose to the Union; that is, that it was negotiating an agreement with SGC and SLGA. Counsel argued that in May of 1997, before the labour dispute, the Union knew that the agreement between REAL and the government agencies was going to Cabinet for approval. According to REAL, the Union knew exactly what was happening with the agreement between REAL, SGC and SLGA before it signed the tentative agreement on June 4, 1997. As a result, there was no failure on the part of REAL to bargain collectively with the Union at the operations or casino tables.

¶ 61 Counsel also argued that REAL made no decision to close the Casino until its Board meeting on August 11, 1997. SGC and SLGA did not disclose that they wanted REAL to close the Casino. REAL did not become aware of SGC's and SLGA's intent to request the closure of the Casino until the July 2, 1997 meeting between the three parties. Counsel argued that until that time, it was REAL's intent to continue to operate the Casino.

¶ 62 Counsel argued that the disclosure of a closure decision is different from other forms of disclosures that are required to be made during the collective bargaining process because s. 11(1)(i) of the Act makes it an unfair labour practice to threaten to close a business in the course of a labour-management dispute. Counsel cited the Board's decision in Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Westfair Foods Ltd., [1993] 3rd Quarter Sask. Labour Rep. 79, LRB File No. 156-93 to support the proposition that an employer cannot inform a union in bargaining that it is considering closing its business unless the decision to close has been made.

¶ 63 With respect to s. 43 of the Act, counsel argued that REAL gave proper notice of the technological change 103 days in advance of the closure. REAL made a technical argument that the closure was not a technological change within the meaning of s. 43 of the Act but it was prepared to bargain collectively with the Union with respect to the closure. REAL then engaged in various meetings with the Union for the purpose of bargaining the effects of the closure. Counsel argued that no allegation was made in the Union's materials that REAL was engaged in surface bargaining with respect to the closure meetings. REAL submitted that it has engaged in collectively bargaining with the Union and asked the Board to draw a distinction between a failure to bargain and tough bargaining. REAL may say "no" to the Union's proposed workplace adjustment plan but that, in itself, does not constitute bargaining in bad faith. Counsel pointed out that the Union did not seek any clarification of REAL's September 19, 1997 letter that indicated it did not wish to discuss any proposals that were presented after November 6, 1996. Counsel argued that REAL had provided proper notice of the technological change even if it did not accept that the closure of the Casino constituted technological change within the meaning of s. 43 of the Act. REAL gave notice of closure in excess of 90 days before closure was to take place. Counsel argued that the Board has no authority to extend the notice period beyond the 90 day period. In addition, REAL is unable to continue to operate the Casino beyond November 22, 1997 as its license will be terminated and its equipment removed as of this date. Counsel requested that the Board not issue a remedial Order if it decides that REAL has violated the Act; instead, he requested that REAL be given an opportunity to propose a rectification plan as is permitted under s. 5.1 of the Act.

¶ 64 On REAL's application against the Union, counsel indicated that the application was filed for the purpose of having the Board decide if there was an operations agreement in effect. He argued that the Board does not have to decide if all the "t's" are crossed and "i's" are dotted but only if there is in fact an agreement.

¶ 65 With respect to the application pertaining to the Union's strike activity, counsel for REAL relied on the cases filed on the interim application which stand for the proposition that activity engaged in by an employer for the purpose of putting pressure on the Union to reach an agreement will constitute lock-out activity no matter how an employer describes the activity. In this instance, REAL did not purport to discipline the employees who were sent home from work for failing to wear their uniforms. Mr. Osadchy indicated that he was implementing REAL's workplace policy that required employees to wear uniforms. He implemented the policy by sending employees home, not by implementing corrective discipline against them. Counsel argued that this conduct constituted a lock-out because it was a defensive response to the Union's strike activity. As such, it was permitted under the Act and did not constitute discipline for strike activity.

¶ 66 Counsel referred to Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Western Grocers, A Division of Westfair Foods, [1992] 4th Quarter Sask. Labour Rep. 83, LRB File No. 168-92; Saskatchewan Government Employees' Union v. Government of Saskatchewan, supra, United Electrical, Radio & Machine Workers of America, Local 504 v. Westinghouse Canada Limited, [1980] 80 CLLC Para. 16,053; Canadian Union of Public Employees v. Saskatchewan Health-Care Association, [1993] 2nd Quarter Sask. Labour Rep. 74, LRB File No. 006-93; Canadian Union of Public Employees, Local 3477 v. Saskatoon Society for the Prevention of Cruelty to Animals, [1994] 3rd Quarter Sask. Labour Rep. 100, LRB File Nos. 007-94 to 012-94; Construction and General Workers, Local 890 v. Interprovincial Concrete Ltd., [1991] 1st Quarter Sask. Labour Rep. 85, LRB File No. 077-89; Manitoba Government Employees' Union v. ISM Information Systems Development Manitoba Corporation (1993), 20 CLRBR (2d) 89 (CLRB); Cook v. International Woodworkers of America, Local 1-174 et al., [1981] Feb. Sask. Labour Rep. 51, LRB File No. 268-80; Saskatoon Typographical Union No. 663 v. Armadale Publishers Limited, [1978] June Sask. Labour Rep. 46, LRB File No. 013-77; Lee v. Carpenters Provincial Council of Saskatchewan and Wm. C. Clark Interiors Ltd., [1990] Spring Sask. Labour Rep. 41, LRB File No. 092-88; Re Mississauga Hydro Commission v. International Brotherhood of Electrical Workers, Local 635 (1984), 17 LAC (3d) 299 (Picher); and Re Canteen of Canada Ltd. v. Retail, Wholesale and Department Store Union, Local 414 (1984), 15 LAC (3d) 305 (Mitchnick).

Analysis

¶ 67 The Board is asked to determine the following questions:

1.		Did the Employer fail to bargain in good faith by not disclosing the details of the agreement between REAL and SGC-SLGA to the Union at the operations and casino tables?
2.		Did the Employer give proper notice of the implementation of technological change?
3.		Did the Employer bargain collectively with the Union with respect to the technological change?
4.		Did the Union fail to execute a formal collective agreement at the operations table?
5.		Did the Employer discipline employees for engaging in strike activity?

¶ 68 We will deal with each issue in the order presented and will address the question of the appropriate remedies at the conclusion of these Reasons.

Did the Employer fail to bargain in good faith by not disclosing the details of the agreement between REAL and SGC-SLGA to the Union at the operations and casino tables?

¶ 69 The Trade Union Act establishes a legal framework for the co-determination by an employer and a union of the terms and conditions of work for employees in a bargaining unit. The cornerstone of this framework is the duty to bargain collectively, which entails two related obligations: first, an obligation to bargain in good faith, and second, an obligation to make every reasonable effort to conclude a collective agreement. The duty to disclose pertinent information during the course of collective bargaining is part of the overall duty to bargain in good faith. In Saskatchewan Government Employees' Union v. Government of Saskatchewan, supra, the Board summarized this obligation as follows at 58:

That duty is imposed by Section 11(1)(c) of The Trade Union Act and its legislative counterpart in every other jurisdiction. It requires the union and the employer to make every reasonable effort to conclude a collective bargaining agreement, and to that end to engage in rational, informed discussion, to answer honestly, and to avoid misrepresentation. More specifically, it is generally accepted that when asked an employer is obligated:

(a)		to disclose information with respect to existing terms and conditions of employment, particularly during negotiations for a first collective bargaining agreement;
(b)		to disclose pertinent information needed by a union to adequately comprehend a proposal or employer response at the bargaining table;
(c)		to inform the union during negotiations of decisions already made which will be implemented during the term of a proposed agreement and which may have a significant impact on the bargaining unit; and
(d)		to answer honestly whether it will probably implement changes during the term of a proposed agreement that may significantly impact on the bargaining unit. This obligation is limited to plans likely to be implemented so that the employer maintains a degree of confidentiality in planning, and because premature disclosure of plans that may not materialize could have an adverse effect on the employer, the union and the employees.

¶ 70 The purpose of the disclosure requirement is to enable parties to bargain matters that may impact on the bargaining unit over the term of the agreement that is under negotiation. It is also designed to foster rational discussion of the bargaining issues. In order for collective bargaining to work effectively without mid-contract disruptions, a union must be kept informed during bargaining of the initiatives that the employer is planning over the course of the collective agreement. The union is also entitled to use its economic weapons in order to negotiate provisions to protect its members from the effects of the employer's initiatives.

¶ 71 In the present case, the Board finds that REAL failed to disclose to the Union both at the operations and casino tables significant details of its agreement with SGC-SLGA. The significant details include the financial arrangements made between REAL and SGC-SLGA, and the termination provision. By April 10, 1997, REAL's Board of Directors had committed itself to entering into an agreement with SGC-SLGA on terms that provided it $3.5 million annually to continue to operate the slot machines, and $2.6 million annually to discontinue the agreement, with an additional sum added to the first year of payments to cover closure costs. Also, it had agreed to a termination clause that effectively gave SGC-SLGA the option to close the Silver Sage Casino.

¶ 72 Both the financial aspects of the agreement and the closure issue were matters that had been raised and discussed at the bargaining tables. REAL itself made the financial aspect of the agreement an issue at the operations table when it asked to delay the bargaining of monetary issues until the agreement with SGC-SLGA was settled. The Union made frequent requests for information pertaining both to the agreement with SGC-SLGA and the closure of the Silver Sage Casino.

¶ 73 REAL's responses to the Union's requests for information pertaining to the agreement at the operations table were incomplete or misleading. At the April 9th meeting between the Union and REAL, REAL led the Union to believe that no agreement was forthcoming between REAL and SGC-SLGA. Mr. Cressman indicated that he told the Union they would deal with monetary issues based on what they knew at the time. Unfortunately, Mr. Cressman did not share with the Union what he knew at that time, that is, that an agreement had been approved in principle for SGC-SLGA to pay REAL $3.5 million annually to operate the slot machines, or $2.6 million annually to close to the Casino.

¶ 74 Mr. Cressman was sufficiently confident of this agreement being finalized with SGC-SLGA that he removed the restriction on discussing monetary issues and proceeded to conclude the collective bargaining. Had there been significant doubt in his mind that an agreement would not be concluded with SGC-SLGA on terms similar to the terms set forth in the April 10th agreement, it is unlikely that REAL would have been in a position to finalize the collective bargaining with the Union at the operations table. According to Mr. Cressman's testimony, the agreement with SGC-SLGA was central to REAL's continued ability to operate.

¶ 75 REAL also failed to disclose to the Union at the operations table the termination clause that had been negotiated between it and SGC-SLGA. The negotiation of the termination clause was a significant decision made by REAL that could and would impact the operations bargaining unit. Forty of the members of that unit would be laid off if and when the termination clause was exercised.

¶ 76 In its evidence, REAL downplayed the significance of the termination clause by suggesting that the clause was similar to termination clauses that exist in most agreements. This may be true. However, parties to a business agreement generally are not in competition with one another in the same business and market and would not benefit financially by eliminating the other party as a competitor. In our view, the agreement between REAL and SGC-SLGA is more akin to a corporate takeover or merger where the terms for continuing and discontinuing operations are clearly set out. If the termination provision had been disclosed to the Union, the provision would have signalled to the Union that closure of the Silver Sage Casino was now a likely possibility. This would have been especially apparent to the Union if it had also known the details of the financial arrangements which reduced the outlay of funds from SGC-SLGA from $3.5 million annually to $2.6 million annually if the termination option was exercised. REAL did not remedy the failure to disclose the agreement at the operations table by its subsequent conduct of informing the Union in May, 1997 that an agreement between it and SGC-SLGA was going to Cabinet. Instead, it kept the Union in the dark about the significance of the agreement and continued negotiations on that footing until a tentative collective agreement was reached on June 4, 1997. Similarly, REAL's letter of July 25, 1997 to the Union vaguely warning the Union that changes might be forthcoming came too little and too late for the operations agreement.

¶ 77 The Board also finds that REAL failed to disclose the significant aspects of the agreement reached between it and SGC-SLGA to the Union at the casino bargaining table. REAL was asked very direct questions relating to the closure of the Silver Sage Casino and it answered those questions in an incomplete and misleading manner. It failed to advise the Union at the table that the Board of Directors had committed REAL to entering into an agreement with SGC-SLGA which permitted those agencies to terminate the slot machine site agreement on 100 days notice. It also failed to tell the Union that the agreement required SGC-SLGA to pay a lower annual payment to REAL if the slot machine site contractor agreement was terminated.

¶ 78 Although REAL protested that the agreement with SGC-SLGA was an operations, not a termination, agreement, taking into account the competitive environment between REAL and SGC, the Board concludes that it was predictable that SGC-SLGA would exercise the termination option within the lifetime of any agreement reached between REAL and the Union at the casino table. Mr. Cressman testified that he did not predict that SGC would exercise the termination option. When questioned as to why he would not have predicted this event, given the bargaining history that REAL had with SGC-SLGA, he answered that he thought they had reached some sort of steady state but that they would terminate the agreement if they saw the performance of the Silver Sage Casino deteriorating.

¶ 79 Frankly, the Board did not believe Mr. Cressman's evidence on this point. It was inconsistent with the historical relationship between the competing casinos, and it was inconsistent with his own approach to bargaining of the termination clause in the Slot Machine Site Contractor Agreement. On the first point, Mr. Cressman testified that he concluded from SGC's and SLGA's failure to abide by the terms of the first slot machine agreement that SGC and SLGA were motivated by a desire to cause the closure of the Silver Sage Casino.

¶ 80 On the second point, REAL approached the negotiation of the closure costs, which were added to the first year of the termination payment, on the basis of the current costs of closure, particularly the current severance costs. Many costs could change depending on when closure was to occur. For instance, the severance notice or pay in lieu of notice varies according to employees' length of service. The actual costs of severance could not be determined unless the date of closure was known. According to Mr. Cressman, the issue of negotiating closure costs was a matter of some concern for REAL. If the time of closure was then unknown to Mr. Cressman, one would think that the prudent way to negotiate closure costs would be to include a formula in the agreement to take into account the costs that may change depending on when closure occurs. REAL did not pursue this path and its negotiating behaviour with SGC-SLGA would lead one to conclude that it did anticipate closure in the near future.

¶ 81 The Board holds that REAL was required to disclose to the Union at the casino table the significant information pertaining to the financial arrangements and the termination clause contained in the agreement between REAL and SGC-SLGA in order to allow the Union the opportunity to bargain provisions that would deal with a possible closure during the term of the agreement. Timely disclosure would also have prevented the unnecessary expenditure of time and resources on the block scheduling issue, the importance of which would likely have been significantly reduced to both parties had bargaining been focused on the real issue of likely closure.

¶ 82 We find that REAL's obligation to disclose this information arose around the time of reaching the April 10, 1997 agreement with SGC-SLGA. The timing of the disclosure was critical to the Union who was attempting to co-ordinate its bargaining strategy over 4 bargaining units with its bargaining strength peaking in early summer. REAL's failure to disclose the information in a timely fashion significantly weakened the Union's bargaining position. REAL's letter of July 25, 1997 and the subsequent disclosure of the closure decision on August 11, 1997, do not cure the original failure to disclose the information to the Union as the untimely disclosure could not restore the Union to the bargaining position it enjoyed in the spring and early summer of 1997.

¶ 83 REAL argued that it was not required to disclose the details of the agreement with SGC-SLGA to the Union until its Board of Directors actually passed the resolution to terminate the slot machine agreement. If the parties had not been engaged in collective bargaining for the operations and casino tables the Employer would not have been required to disclose the details of the agreement or the decision to close until 90 days prior to the date the decision would be implemented. This requirement is set out in s. 43(2) of the Act when it states:

"An employer ... shall give notice of the technological change to the trade union and to the minister at least ninety days prior to the date on which the technological change is to be effected."

¶ 84 However, when the parties are engaged in collective bargaining for the renewal of a collective agreement, the disclosure obligation arises when the employer is asked a question at the bargaining table or when the employer makes a decision that will likely impact on the bargaining unit during the term of the agreement being negotiated. In this case, REAL was obligated to provide the Union with the significant details of the agreement with SGC-SLGA under either branch of the disclosure obligation. The Union asked questions about the possibility of closure at least as early as March, 1997. On April 10, 1997, REAL had committed itself to an agreement in principle with SGC-SLGA.

¶ 85 REAL also argued that it was prevented from disclosing the agreement, particularly the termination clause of the agreement, because such disclosure would constitute a threat of closure within the meaning of s. 11(1)(i) of the Act. Counsel for REAL argued that the Board's decision in Western Grocers, supra, prevented the Employer from disclosing the possibility of closure until a final decision was made.

¶ 86 The Board does not interpret its ruling in Western Grocers in this manner. In that instance, the Employer held a meeting with its employees to encourage the employees "to put pressure on the Union to soften its position so that unfortunate consequences could be avoided" (at 84). The unfortunate consequences related to the closure of the warehouse. Subsequent to this meeting, the Employer notified the Union that it intended to permanently close the warehouse. At 88-90, the Board discussed the interplay between s. 11(1)(i) and the duty to disclose accurate information to the Union and concluded as follows:

	Counsel for the employer suggested that, on the face of it, s. 11(1)(i) creates an obligation inconsistent with another duty which has been imposed on employers, that of disclosing information necessary to allow bargaining to proceed on a realistic basis.
	This Board has made it clear on a number of occasions that part of the duty to engage in bargaining collectively which is imposed on an employer by virtue of s. 11(1)(c) of The Trade Union Act consists of a duty to disclose information which is vital to the bargaining process.
	It should be noted that these decisions describe a duty under s. 11(1)(c) to disclose information to the trade union representing employees, and lend no support to a proposition that an employer has a duty to disclose directly to employees. The limits on the nature and purpose of employer communications to employees, as distinct from their bargaining agent, are covered by the distinct principles which have been developed in connection with s. 11(1)(a).
	. . .
	On the other hand, s. 11(1)(i), which deals with one particular topic, clearly contemplates that there may be circumstances in which an employer is not merely conveying information, but is using an opportunity for communication to gain an illicit advantage in the context of a labour-management dispute. The section is intended, in our view, to prevent an employer from exploiting a possibility to which employees are especially vulnerable - the loss of their jobs - to undermine the capacity of their bargaining representatives to pursue an effective bargaining strategy.
	There are a number of factors in this case which lead us to the conclusion that the conduct of this employer at the meeting of July 7 was marked by the kind of improper purpose which makes it an unfair labour practice under s. 11(1)(i), and distinguishes it from a conscientious effort to comply with any duty to disclose information to a union, and from lawful employer communication with employees.

¶ 87 The Board then considered the following factors in determining that the Employer's motives in raising the possible closure at the meeting with employees were improper and constituted a threat within s. 11(1)(i): the failure to provide detailed financial information to the Union at the bargaining table which would make the closure of the warehouse an option that would need to be faced by the Union; the lack of knowledge by the Employer's chief negotiator of the Employer's financial picture; and the fact that the closure option had not been fully explored and no decision had been finalized to close the warehouse.

¶ 88 The Board attempts to ascertain the motives of an employer when the employer has made statements during bargaining concerning the closure of a business. If it appears to the Board that an employer is motivated by a desire to gain the upper hand at the bargaining table, remarks that suggest the employer may close the business will constitute "threats" within the meaning of s. 11(1)(i). On the other hand, when an employer takes concrete steps to initiate closure of a business, the employer has an obligation to disclose this information to the union. In these circumstances, the disclosure does not constitute a threat within the meaning of s. 11(1)(i) unless it is improperly motivated by anti-union animus.

¶ 89 In this instance, REAL had taken concrete steps by signing the April 10th agreement with SGC-SLGA that would make the closure of the Silver Sage Casino a real possibility within the life of the collective agreements then being negotiated with the Union. Disclosure of the significant provisions in the agreement between it and SGC-SLGA would not constitute an improper threat within the meaning of s. 11(1)(i).

Did the Employer give proper notice of the implementation of technological change?

¶ 90 Section 43(2) of the Act requires an employer to provide the union and the Minister with notice of technological change at least 90 days prior to the date on which the change is to be effected. Section 43(3) of the Act requires an employer to specify the following information in its notice of technological change:

(a)		the nature of the technological change;
(b)		the date upon which the employer proposed to effect the technological change;
(c)		the number and type of employees likely to be affected by the technological change;
(d)		the effect that the technological change is likely to have on the terms and conditions or tenure of employment of the employees affected;
(e)		such other information as the minister may by regulation require.

¶ 91 REAL's letter of August 12, 1997 to the Union set forth the information required to be contained in a notice of technological change under s. 43(3) and was served on the Union and the Minister 90 days or more in advance of the date of the implementation. Although REAL stated in the notice that it did not believe the closure constituted a technological change, the Board concludes that the content of the notice was sufficient to provide the Union with the information required by s. 43.

¶ 92 The purpose of s. 43 is to provide the union with knowledge of a technological change in advance of its implementation in order to provide the union with an opportunity to negotiate a workplace adjustment plan. In this instance, although the Employer disputed the legal characterization of the closure as constituting a technological change, it nevertheless complied with the notice requirement and opened an opportunity for negotiations related to the change.

Did the Employer bargain collectively with the Union with respect to the technological change?

¶ 93 As indicated, the significant purpose of the technological change provisions contained in s. 43 of the Act is to provide the union with notice of the change and an opportunity to bargain with respect to the change prior to its implementation. Section 43(8) allows the union to serve notice on the employer "to commence collective bargaining for the purpose of developing a workplace adjustment plan." Upon the service of the notice to bargain, the union and the employer are required by s. 43(8.1) to "meet for the purpose of bargaining collectively with respect to a workplace adjustment plan." "Bargaining collectively" is a defined term in the Act and as indicated earlier, it requires the parties to negotiate in good faith and it requires them to make every effort to enter into a collective agreement, which in this case is described as a workplace adjustment plan. The topics that may be addressed in bargaining such a plan are set out in s. 43(8.2) as follows:

43(8.2) A workplace adjustment plan may include provisions with respect to any of the following:

(a)		consideration of alternatives to the proposed technological change, including amendment of provisions in the collective bargaining agreement;
(b)		human resource planning and employee counselling and retraining;
(c)		notice of termination;
(d)		severance pay;
(e)		entitlement to pension and other benefits, including early retirement benefits;
(f)		a bipartite process for overseeing the implementation of the workplace adjustment plan.

¶ 94 REAL took contradictory and confusing positions with respect to its obligation to bargain the closure of the Silver Sage Casino pursuant to the technological change provisions. These positions were not explained or clarified in the Employer's evidence.

¶ 95 In its August 12, 1997 letter to the Union, REAL advised that it was prepared to meet with the Union to discuss the implementation of the Casino closing. At that time, it also continued to deny that the closure constituted technological change. Subsequently, on August 14, 1997, REAL suggested that the terms of the current expired contract continue until closure and that all bargaining meetings be cancelled. The Union rejected this suggestion and proposed to continue negotiations of the new agreement to address issues relating to the technological change unless the Employer was willing to acknowledge that the closure constituted a change and was prepared to negotiate a workplace adjustment plan. The planned bargaining meetings were then cancelled by REAL's negotiator due to his holiday schedule. In its August 25th letter to the Union, the Employer undertook to bargain and concluded: "As we have a Collective Agreement that has expired, and we are already under a duty to negotiate with you, we have no objection if you amend your position to deal with any issues you wish to discuss with us." The Union then forwarded the Employer its proposed workplace adjustment plan and met with the Employer on September 15th. Subsequent to that meeting, the Employer reiterated its position that the closure was not a technological change and it provided its response to the Union's proposed workplace adjustment plan by indicating that it could not agree to the Union's proposals. On the same date, it sent the Union a second letter which stated that it would not accept any bargaining proposals with respect to the negotiations of the Casino agreement that were submitted by the Union and dated after November 6, 1996. Subsequently, the parties met again to discuss the workplace adjustment plan proposed by the Union and the Employer made a counter-offer on October 9th, 1997.

¶ 96 The Board will consider a number of factors to determine if a party is engaged in good faith bargaining and if it is taking reasonable steps to conclude a collective agreement. In Royal Oak Mines v. Canadian Association of Smelter and Allied Workers , Local 4, [1996] 1 S.C.R. 369 (S.C.C.), Cory J. described the overall approach to determining compliance with the duty at para. 42 as follows:

Section 50(a) of the Canada Labour Code has two facets. Not only must the parties bargain in good faith, but they must also make every reasonable effort to enter into a collective agreement. Both components are equally important, and a party will be found in breach of the section if it does not comply with both of them. There may well be exceptions but as a general rule the duty to enter into bargaining in good faith must be measured on a subjective standard, while the making of a reasonable effort to bargain should be measured by an objective standard which can be ascertained by a board looking to comparable standards and practices within the particular industry.

¶ 97 In Canadian Commercial Corporation (1988), 74 di 175 (CLRB), the Canada Labour Relations Board described the duty to bargain collectively in similar terms at 186:

Bad faith has been judged present in situations where one party has advanced a key position curtly and without any attempt to justify, explain or rationalize it; where there has been no serious discussion of the matter and the atmosphere created is one of "take it or leave it and bloody well face the consequences."

¶ 98 In the present case, the Board concludes that REAL has not demonstrated a sincere desire to conclude a workplace adjustment plan with the Union, rather it has simply been going through the motions of bargaining. We come to this conclusion from the exchange of correspondence set out above in which REAL blows hot and cold with respect to its desire to hear, discuss and respond to Union proposals concerning the closure of the Silver Sage Casino, and from its curt and unreasoned responses to the Union's workplace adjustment proposal.

¶ 99 This bargaining stance can be contrasted with REAL's negotiations with SGC-SLGA. The contrast in the seriousness of the bargaining efforts on the part of REAL are stark. In the SGC-SLGA negotiations, REAL engaged in hard bargaining which was backed up with written proposals on closure costs, including the severance costs for employees, discussions, exchanges of ideas, informal meetings, and the like. In its dealings with the Union over the closure of the Casino, REAL sent unclear messages as to what it was willing to bargain. It also responded to the Union's workplace adjustment plan with curt answers that are not explained or justified by financial or other considerations.

¶ 100 As described by this Board in the Western Grocers case, supra, "it is not within the mandate of the Board, under ordinary conditions, to seek to modify the substantive bargaining positions of the parties or to monitor too closely the bargaining strategies adopted by the parties as each seeks to attain the agreement of the other to their terms." So long as the parties are engaged in honest, albeit tough, exchanges, the Board will not intervene to tip the balance of bargaining power from one party to another. The Board is not concerned with the content of the proposals put forward by either side except when the content of the proposals indicates bad faith bargaining. In this instance, we find that the Employer's responses to the Union proposals and its entire bargaining stance to date demonstrate a lack of willingness to bargain a workplace adjustment plan as is required by s. 43 of the Act.

¶ 101 Bargaining collectively with respect to a workplace adjustment plan carries with it the same degree of effort that is expected when parties are negotiating a collective agreement. A simple exchange of proposals is insufficient to satisfy the duty to bargain. It is necessary for the parties to engage in a serious, determined and rational discussion of the proposals that are put forward, including discussions of the economic or other justifications for objecting to the proposals and of alternatives to the rejected proposals. Such bargaining must occur before the technological change can be effected under s. 43(10) of the Act, which states:

43(10)		Where a trade union has served notice to commence collective bargaining under subsection (8), the employer shall not effect the technological change in respect of which the notice has been served unless:
(a)		a workplace adjustment plan has been developed as a result of bargaining collectively; or
(b)		the minister has been served with a notice in writing informing the minister that the parties have bargained collectively and have failed to develop a workplace adjustment plan.

¶ 102 To the date of hearing, REAL had failed to engage in collective bargaining to the extent that is required by s. 43(10) and it had certainly not reached a point to permit it to serve the Minister with a notice that it has bargained collectively and has failed to reach a workplace adjustment plan.

Did the Union fail to execute a formal collective agreement at the operations table?

¶ 103 Both parties are required to commit an agreement arrived at through collective bargaining to writing as part of their overall duty to bargain collectively. In this instance, the Union agrees that the parties reached a tentative agreement on June 4, 1997 with respect to the operations table which subsequently was ratified by the Union's members and REAL's Board of Directors. The Union has been unwilling to sign the formal agreement forwarded by the Employer to it because it disputes the accuracy of the Employer's document. There is no evidence that the Union is relying on insignificant errors in the document in order to avoid signing the formal agreement for improper purposes.

¶ 104 In these circumstances, the Board does not find the Union to be in violation of its duty to bargain collectively. If the parties are unable to agree to the formal wording, they may refer the matters in dispute to arbitration pursuant to the grievance and arbitration provisions contained in their agreement or in the Act. The agreement reached on June 4, 1997 is binding on the parties. The Board's remedial Order which is designed to redress the Employer's failure to bargain collectively with respect to this agreement will reopen bargaining on this agreement with respect to issues relating to the closure of the Casino and its effect on the operations unit. The Order will not otherwise disturb the matters agreed to in June, 1997.

Did the Employer discipline employees for engaging in strike activity?

¶ 105 The Union alleges that the Employer disciplined employees for engaging in strike activity which took the form of attending work without wearing the required uniforms. There is no dispute that the Union's activity constituted strike activity. The issue for the Board to determine is whether the Employer's response, which took the form of sending employees home without pay when they attended at work without a uniform, constituted improper discipline within the prohibition contained in ss. 11(1)(a) and (e) of the Act. REAL argued that its response constituted a defensive lock-out, not improper discipline.

¶ 106 Employees are entitled to engage in strike activity without fear of being disciplined or discriminated against by the employer for having participated in strike activity so long as the strike is timely within the parameters set out in ss. 11(6) and 44(2) of the Act. Likewise, employers are entitled to engage in a lock-out if it is timely within the parameters of ss. 11(7) and 44.

¶ 107 Lock-out activity is defined in s. 2(j.2) of the Act as follows:

In this Act:

(j.2)		"lock-out" means one or more of the following actions taken by an employer for the purpose of compelling employees to agree to terms and conditions of employment:
(i)		the closing of all or part of a place of employment; (ii) a suspension of work; (iii) a refusal to continue to employ employees;

¶ 108 In Retail, Wholesale and Department Store Union v. Pepsi-Cola Beverages (West) Ltd., [1997] S.L.R.B.D. No. 62, LRB File No. 166-97, the Board held that the definition of lock-out contained in the Act is an exhaustive definition, that is, an employer is only permitted to engage in the three forms of activity set out in the definition. In this instance, the Employer claims to have engaged in the third form specified in s. 2(j.2) - the refusal to continue to employ employees.

¶ 109 The Union argued that an employer who purports to lock-out employees, in addition to confining his activity to one of the three forms of lock-out specified in s. 2(j.2), must act for the purpose of compelling employees to agree to terms and conditions of employment. In the absence of such a purpose or intent, the employer's action would not constitute a "lock-out" within the meaning of the Act.

¶ 110 In response, REAL argued that the purposive element can be demonstrated by offensive or defensive lock-out activity. An offensive lock-out occurs when an employer initiates a labour dispute by locking-out employees for the purpose of pressuring employees to accept the employer's bargaining proposals. A defensive lock-out occurs when an employer responds to strike activity by effecting a lock-out. A defensive lock-out can be designed to resist strike activity by using measures that are proportional to the strike activity or it can be designed to escalate the labour dispute in order to put economic pressure on the union and its members.

¶ 111 The Board concludes that the Employer's activity in this instance did constitute a lock-out. REAL engaged in one form of activity that is permitted by s. 2(j.2) - a refusal to continue to employ employees - that was a direct response to the strike activity engaged in by the Union. The purpose of the Employer's response was to resist the strike activity by compelling Union members to attend work in uniform or suffer a loss of pay. The use of such tactics is part and parcel of a normal labour dispute, all of which is designed to bring economic and other pressure to bear on each side in order to arrive at an agreement.

¶ 112 In this instance, although we have found that the Employer failed or refused to bargain collectively with the Union with respect to the casino table and its s. 43 obligations on the implementation of the closure, we do not find that the use of the defensive lock-out per se constituted a violation of the Act.

Summary of Board Findings

¶ 113 On LRB File No. 256-97, the Board holds that the Employer violated s. 11(1)(c) of the Act by failing to disclose the significant aspects of the agreement it negotiated with SGC-SLGA to the Union at the operations and casino bargaining tables. The Board makes no finding with respect to the allegation that the Employer also violated s. 11(1)(a).

¶ 114 On LRB File No. 266-97, the Board has already made a finding that the closure of the Casino constituted a technological change. In these Reasons, the Board finds that the Employer failed to bargain collectively with respect to the closure as is required by s. 43 of the Act.

¶ 115 On LRB File No. 279-97, the Board finds that the Union did not refuse to bargain collectively by failing to execute the formal operations agreement.

¶ 116 On LRB File No. 308-97, the Board finds that the Employer failed or refused to bargain collectively with the Union in violation of s. 43 of the Act.

¶ 117 On LRB File No. 321-97, the Board finds that the Employer did not discipline or discriminate against employees based on the exercise of their right to engage in strike activity.

Remedies

¶ 118 The Board issued an Order in this application prior to rendering its Reasons for Decision. This procedure was followed in order to allow the parties to gauge their respective positions before November 22, 1997, which was the date set for closure of the Casino.

¶ 119 The Order required the Employer to bargain collectively with the Union with respect to operations agreement by reopening the agreement reached on June 4, 1997, in order to address any proposals either party may make related to the lay-off of operations employees due to the closure of the Silver Sage Casino. It is the view of the Board that failure on the part of the Employer to disclose the SGC-SLGA agreement at the operations table cost the Union the opportunity of bargaining better lay-off, severance and similar provisions for its members in this unit. This opportunity can be restored by opening the operations agreement to the extent necessary to deal with the effect of the closure of Silver Sage Casino on the operations bargaining unit.

¶ 120 The Order also required REAL to bargain collectively with the Union with respect to the casino agreement which remains to be finalized.

¶ 121 Finally, the Order required REAL to bargain collectively with the Union with respect to a workplace adjustment plan relating to the closure of the Silver Sage Casino. The Board ordered the Employer not to effect the closure until it had complied with its obligation to bargain collectively in accordance with ss. 43(8), (8.1) and (8.2), and an agreement has been reached or notice provided to the Minister in accordance with s. 43(10). In the event that REAL is unable to lawfully operate the Silver Sage Casino in accordance with the Board's direction after November 22, 1997, it is required to continue to pay the employees of the Casino who are affected by the implementation of the technological change the wages and benefits they normally would earn if the Casino was able to remain open in accordance with the Board's directive to REAL.

¶ 122 In fashioning the remedies with respect to the failure of REAL to bargain collectively with the Union with respect to the workplace adjustment plan, the Board is requiring REAL to comply with the requirements set out in s. 43(10) of the Act which is quoted above. That is, an employer is not permitted under that provision to implement a technological change unless and until it has bargained collectively with the union. The employer is permitted by s. 43(10) to implement the change if the parties conclude a workplace adjustment plan. In the event that bargaining is not successful, the employer can implement the change after he has notified the Minister of the failure to reach a workplace adjustment plan. For bargaining to "fail", the parties must be at a genuine impasse, having exhausted all reasonable efforts to achieve a workplace adjustment plan. As indicated earlier, the obligation to bargain a workplace adjustment plan carries the same degree of effort as the negotiation of a collective agreement.

¶ 123 The Board was aware from remarks made by counsel for REAL at the hearing that it may not be possible for REAL to lawfully operate the Casino after November 22nd. If REAL does not have a gaming license or if its equipment has been removed in accordance with the agreement between REAL and SGC-SLGA, obviously REAL's ability to comply with the Board's Order not to effect the change until collective bargaining has concluded becomes problematic. To cover this possibility, the Board made an alternate Order that requires REAL to continue to pay wages and benefits to the Casino employees for the duration of the collective bargaining between REAL and the Union with respect to the workplace adjustment plan. The alternate Order is intended to address directly the consequences of REAL's breach of s. 43 by placing employees in the same position they would be in if it were possible for REAL to comply with the requirement contained in s. 43(10) of the Act that it not implement the technological change until it has bargained collectively with the Union with respect to the workplace adjustment plan.

¶ 124 The Board reserved its jurisdiction to determine any disputes arising from its Order, including the calculation of wages and benefits that may become owing to employees.

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