HomeMy WebLinkAboutFilman 89-07-04 THE MATTER OF AN ARBITRATION
?WEEN: ST. LAWRENCE YOUTH ASSOCIATION
The Employer
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Union
IN THE MATTER OF THE GRIEVANCE OF C. Filman alleging improper
ute to pay negotiated salary increases (OPSEU File No. 88CT18).
, OF ARBITRATION: D.D. Carter, Chair
L.D. Foreman, Employer Nominee
J. McManus, Union Nominee
IANCES:
e Employer: J.P. Crowe, Counsel
M.W. Boswell
Union: M. Ruby, Counsel
C. Filman
L..King
M. Fox
J. Boersma
in this matter was held in Kingston on May 25, 1989.
AWARD
This grievance arises from a difference as to the interpretation of Appendix
3 of the collective agreement dealing with salaries. The particular provision o~
that appendix which is in dispute is set out below:
(6) ASSISTANT 'DIRECT-CARE WORKER
(a) Commencing 1 April 1988, the present assistant direct-care worker will
be promoted to a direct-care worker, such position to be reviewed by
the Employer within 6 months and whose salary shall be as follows:
i) Salary of $18,148.00 commencing 1 April 1988, together with a 4%
increase retro-active with percentage increase being retro-active
to April 1, 1987.
ii) In addition, as of 1 April 1988, a 4% increase on salary based on
the total salary received under clause. 6 (a) (i) herein.
iii) On 1 October 1988, salary to be increased to $19,500.00/annum.
iv) On a April 1989, salary to be $26,200/annum.
v) Shift bonus of $45.00 Der month from 1 April 1988, such bonus to be
paid in December prior to Christmas in each year of the agreement
for those on a regular shift work schedules.
It was not disputed that this provision was inte ~ed to deal with the
articular situation of the grievor. Prior to the negotiation of this first
)llective agreement between the parties, although the grievor performed the same
~rk as a direct-care worker, she received a considerably lower salary as an
sistant direct-care worker because she lacked the required academic
~lifications for the higher rated position. The effect of the collective
~eement provision set out above was to promote the grievor to a direct-care
worker as of April 1, 1988, and to bring her salary in line with that of the
higher classification by April 1, 1989.
The union and the employer differ, however, as to the method by which this
objective was to be achieved. Prior to the execution of the collective agreement
the grievor was receiving an annual salary of $14,560. Under the collective
agreement a new rate of $18,148 was established for the grievor. The employer
took the position that this new rate was not to be made retroactive to April 1,
1987, and only paid the grievor a retroactive salary increase of 4% of her old
rate of $14,560. The union, on the other hand, took the position that the
grievor's new rate of $18,148 was retroactive to April 1, 1987, so that her
retroactive payment should have included the difference between the old rate and
new rate ($3,588) as well as 4% of her new rate of $18,148.
At the outset of the hearing the board was faced with two preliminary
matters. First, the union asked the board to receive extrinsic evidence of the
negotiations between the parties as an aid to interpreting the language of the
collective agreement. The request was opposed by the employer on the ground that
there was no ambiguity in the language of the collective agreement that could
3ustify the use of such,extrinsic evidence. The employer further argued that the
grievance was untimely and should be dismissed on that basis.
The board ruled that it would reserve on the timeliness objection since it
did not have before it sufficient evidence of either reasonable grounds for
extension of the time limits or evidence of any prejudice that might be suffered
by the employer if the time limits were to be extended. If it should prove
necessary, such evidence may he introduced at a later hearing date, although the
need for a further day of hearing may be avoided by our ruling on the reception
of extrinsic evidence which is set out below.
It is well accepted that a board of arbitration may only receive and rely
upon extrinsic evidence where the language of the collective agreement is
ambiguous, either in the sense of being ambiguous on it face or where the actual
application o~ the colldctive agreement reveals the possibility of more than one
meaning. As we read the language in question, and analyze its application, we
can find no ambiguity as to the commencement date of the grievor's new rate of
$18,148. The language chosen by the parties does not allow an interpretation
other than that the new rate of $18,148 would begin on April 1, 1988, and that it
would have no effect prior to that date.
The parties, however, have not spelled out the calculation of the 4%
retroactive increase with equal clarity. In the board's view, there is ambiguity
on this separate issue of the calculation of the increase so that it would be
appropriate to receive extrinsic evidence for the limited purpose of clarifying
the parties' intentions as to this matter. The board, therefore, would be
prepared to convene a further hearing to receive extrinsic evidence relating to
the calculation of the 4% retroactive increase and~ of course, to deal with the
employer's objection as to the timeliness of the grievance.
While the board is'prepared to continue the hearing of this matter, it
should be recognized that the more narrow issue of the calculation of the 4%
retroactive increase is one that involves neither a great issue of principle nor
a large sum of money. In these circumstances it would make good sense for the
parties to settle this outstanding issue rather than to return to this board for
a second day of hearing. Nevertheless, in the event that the parties are unable
to resolve this outstanding issue through agreement, we continue to remain seized
of this matter.
4
:d at Kingston t~i-~ ~ day of~, 1989.
D.D. r
L.D. Foreman, Employer Nominee
J. McManus, Union Nominee