HomeMy WebLinkAbout1991-2662.Craig & Grimes.95-03-27 ONTARIO EMPLOYES DE LA OOURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE COMMISSION DE
SEITLEMENT Rf=GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREETWEST, surrE 2100, TORONTO ON MSG 1Z8 TELEPHONE/T~-I.~PHONE : (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG IZ8 FACS/M/LE/T~/._~COP/E : (416) 326-1396
GSB# 2662/91, 2711/91
OPSEU# 92B301, 92B344-92B346
IN THE MATTER OF ~N ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEV~NCE SETTLEMENT BOA1H).
BETWEEN
OPSEU (Craig/Grimes)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFORE N. Dissanayake Vice-Chairperson
M. Vorster Member
M. O'Toole Member
FOR THE H. Law
GRIEVOR union Representative
Ontario Public Service Employees Union
FOR THE D. Jarvis
EMPLOYER Counsel
Filion, Wakely & Thorup
Barristers & Solicitors
HEARING JUly 6, 1992
January 18, 1993
June 16, 1993
August 31, 1993
2
DECISION
These are grievances filed by Mr. Tom Grimes and Mr.
William Craig alleging that the employer had failed to
properly implement the terms of a Memorandum of Settlement
entered into between the employer and the union on July 17,
1991.
At all relevant times the grievors were employed as
Enforcement officers of the Ministry of Transportation. Their
primary responsibility was the enforcement of legislation and
regulations on the trucking industry and other public
carriers. Their positions were classified at Highway Carrier
2. Both grievors were hired in 1982, and by 1986 they were at
the top of the three step pay grid for the classification of
Highway Carrier 2. in 1986 a number of individual grievances
and a union grievance were filed alleging that the positions
occupied by enforcement officers were improperly classified.
While the grievances were still out'standing, the employer
unilaterally reclassified all enforcement officer positions
from Highway Carrier 2 to Highway carrier 3. This of course
included the two grievors. In March and April of 1989
respectively, the Grievance Settlement Board issued two
decisions covering all of the grievances. In substance, the
Board determined that the positions in question were
improperly classified and issued "Berry orders" directing that
they be properly classified.
This led to negotiations between the employer and union
for a new class series called the Transportation Enforcement
officer ("TEO") series. On January 30, 1991 agreement was
reached on the wording for class standards covering TEO i to
TEO 3. The agreement had the result of merging a number of
existing classifications within the new TEO series.
The Civil Service' Commission approved the new class
standard series retroactive to February 15, 1990.
Negotiations followed under article 5.8 of the collective
agreement for a pay scale for the new class series, and for
grid placement of the employees occupying the affected
positions. With the assistance of a'mediator, on June 27,
1991 agreement was reached. On July 17, 1991 the parties
executed formal minutes of settlement.
The present grievances arise out of disagreement as to
the proper interpretation of the terms of those minutes of
settlement. The relevant portions read as follows:
Wages
the weekly wage rates as of February 15, 1990 for
the three classifications in this series shall be
as set out below. The Transportation Enforcement
· officer 1 classification shall have 2 semi-annual
steps. The Transportation Enforcement Off.icer 2
and Transportaion Enforcement officer 3
classifications shall each have 3 annual steps.
Transportation Enforcement officer 1 $698.08 717.00
Transportation Enforcement Officer 2 $779.80 803.04 829.36
Transportation Enforcement Officer 3 $819.96 846.61 878.45
ImDlementation
Without prejudice and without precedent and because
the new classification of Transportation
Enforcement Officer has resulted in the merger of
several different classificatiOns, the parties
agree that employees will be placed on the
Transportation Enforcement officer salary grids in
the following manner:
1. Employees Dresently classified as
Inspector 1, Vehicle Inspection,
Inspector 2, Vehicle Inspection, Highway
Carrier, Inspector 1,~ Highway Carrier,
Inspector 2, or Highway Carrier,
Inspector 3 will be placed on the step of
the Transportation ~nforcement Officer
salary levels that corresponds to their
years of service in their former
Dositions as at April 1, 1986 or such
later date as may be appropriate.
It is agreed that those employees
currently classified as Inspector 1,
Vehicle Inspection, Highway Carrier,
Inspector 1 or Highway Carrier, Inspector
2 will be reclassified as Transportation
Enforcement Officer 1.
Those employees currently classified as
Inspector 2, Vehicle Inspection or
Highway Carrier, Inspector 3 will be
reclassified as Transportation
Enforcement Officer 2.
2. Employees who are presently classified as
Employment Standards Auditor. 2 (atypical)
in positions titled Highway Carrier
Safety Inspector employed by the Ministry
of Transportation will be placed on the
Transportation Enforcement Officer 3 grid
effective February 15, 1990 in accordance
with the Campbell Award. Inasmuch as it
is the intent of the parties to re-create
history to the extent possible, it is
agreed that e~ployees in this group who
are to be pla~ed in accordance with the
Campbell Award will be so placed after
re-evaluatingltheir original placement on
the Employmen~ Standards Auditor 2 grid,
taking to account where on the then
existing grid ~he promotional rules would
have placedl them had the new
Transportation Enforcement Officer 1-3
grids been in existence at the time of
their promotion to Employment Standards
Auditor 2.
(Emphasis added)
The dispute relates to the effective date of the
reclassification withi~ the new TEO classification and the
grid placement of the ~two grievors. The union takes the
position that as a r~sult of the employer's unilateral
reclassification the grievors were "presently" (i.e. as of the
date of signing July 17~, 1991) classified as Highway Carrier
'3. It is agreed that u~der the new series their positions get
assigned to TEO 2. The union takes the position that the
settlement requires that employees be placed on the step' of
the TEO salary levels i"that corresponds to their years of
service in their forme~ ~o$itions as at April 1, 1986". The
union points out that as at April 1, 1986 the g~ievors had
held their positions as Enforcement Officers for 4 years.
Since a TEO 2 under the'settlement reaches the maximum step of
the grid in 3 years, it is the union's position that the two
grievors must be placed at the maximum step of the TEO 2
salary grid. It is alleged that the employer breached the
terms of the settlement by placing the grievors at the bottom
step of the grid.
The employer submits that the phrase ."presently
classified" must be taken to mean "classified as of April 1,
1986". In addition, it is contended that the years of service
to be considered in grid placement must be the years of
service in the employee's former classification. In other
words, the employer would have the Board read the phrase "in
their former positions" as meaning "in their former
classifications".
Employer counsel recognized that given the language used,
his interpretation at first glance may look awkward. He
submitted that the Board should "read in!' the date of April 1,
1986 and deem "position" to mean "classification", because
that was the deal struck on June 27, 1991 as understood by
both parties and because the union's, interpretation causes
confusion in the implementation.
Faced with language that on its face appeared to support
the union's interpretation, counsel sought to adduce extrinsic
evidence relating to the negotiations that preceded the
execution of the settlement. He put forward two grounds as to
why that should be permitted. First, he submitted that such
evidence would establish that during negotiations the union
?
made representations which would estop it from taking the
position that it now takes as to the meaning of the
settlement. Secondly, counsel argued that extrinsic evidence
was admissible because the terms of the settlement are replete
with patent and latent ambiguities. The majority of the Board
ruled that the extrinsic evidence would be received for the
purposes of the estoppel argument, but subject to a
determination to be made later as to whether the evidence is
admissible on the grounds of ambiguity.
The employer's estoppel argument is not supportable by
the evidence. In order'to establish an estoppel these must be
a clear representation by the union either bywords or action,
.that it agrees with the employer's position on the disputed
issues. The final deal was struck on June 27, 1991 between.
Ms. Kathy Brown on behalf of the employer team and Mr. Brian
Gould representing the union negotiating committee in the
presence of a-mediator. While Ms. Brown testified that she
understood that Mr. Gould had agreed to the employer's
position, she could not point to anything that Mr. Gould may
have said or done to communicate such agreement. Nor was
there any written exchanges between the parties indicating
such agreement. This evidence falls far short of the standard
required to prove a representation for purposes of
establishing an estoppel.
8
Now we turn to consider whether the Board should rely on
extrinsic evidence relating to negotiating history leading up
to this settlement. Such evidence may only be used by the
Board as an aid to interpreting the language of the
settlement, if the Board finds the language used to be
patently or latently ambiguous. Patent ambiguity is where the
language used is on its face ambiguOus. This would be the
case where particular words or phrases used have different
possible meanings. We have no difficulty concluding that the
disputed language in the settlement document is not ambiguous
on its face. The words "presently" and "position" have well
understood plain meanings and are not by themselves capable of
conflicting interpretation. Therefore, we find that there are
no patent ambiguities in this document.
Latent ambiguity is where the language, though clear on'
its face, creates ambiguity in application and in practice.
However, one must be very careful in determining whether a
latent ambiguity exists. Often the language used by the
parties may be capable of different interpretations and
constructions. The notion of latent ambiquity, however, does
not include generally "all cases of doubtful meaning or
application". [Leitch Gold Mines Ltd. v. Texas Gulf Sulphar
Co. Inc., (1969) 1 O.R. 469 at p.. 524]. As arbitrator
Weatherii1 stated in Re Int'l Nickel Co. of Canada, (1974) 5.
L.A.C. (2d) 331 at p. 334, the notion of latent ambiguity
9
"should not be, and was not intended to be taken so far as to
open the door to the admission of extrinsic evidence whenever
a disagreement as to the construction of a document arises.
If that were allowed, the strength of a document such as a
collective agreement would be greatly reduced, and the well-
established rules respecting the admission of extrinsic
evidence would be meaningless". The mere fact that the
application of the plain meaning of the language used leads to
unfair or illogical results also should not automatically lead
to the admission of extrinsic evidence. The process of
collective bargaining is such that not infrequently, under the
severe pressure to reach a settlement and end protracted
negotiations, parties may agree to language despite the
irrationality or unfairness. Sometimes a party may be willing
to live with such a result because as a trade off it had
gained concessions from the other party in an area it
considers to be more important. Therefore lack of rationality
or fairness does not necessarily lead to a conclusion that the
document is latentlyambiguous.
..In. our view, for there to be a finding of latent
ambiguity in terms of ambiguity in application, the party
alleging ambiguity must not only establish that the language
leads the irrational or inconsistent results, but that such
irrationality and inconsistency was such that it is reasonable
l0
to conclude that the parties could not possibly have intended
such results.
In the present case, a careful review of the settlement
as a whole, establishes that the language used if applied
literally, does lead to such illogical and untenable results
that it is reasonable to conclude that the parties could not
have intended such consequences. The settlement as a whole
clearly indicates that the parties intended its terms to apply
to all employees in the stated classifications, including
those who had left employment prior to the date of settlement.
Thus, for purposes of retroactivity, the document is said to
cover "all persons who are or were classified .as ...".
However, in implementing the new classifications it refers to
"employees presentlyclassified as". If the plain meaning Of
"presently" is taken to mean the date of execution of the
settlement, ie. July 17, 1991, the implementation will be
limited to those persons who were classified in the stated
classifications as of July 17, 1991. It would not apply to
those employees wh~ had left employment prior to that date.
It is our conclusion that having proVided for retroactivity
for all employees who "are or were" classified in the various
classifications, the parties must have intended the
implementation of the new classifications also to apply to the
same broad range of employees. This is because, unless an
employee who was classified at some earlier point was entitled
to reclassification under the agreement, no question of
retroactivity would arise. The parties could not have
intended to exclude from the settlement all employees who were
not presently (ie. as of the date of the settlement)
classified in the subject classifications.
Similarly, while the word "position" in normal usage in
labour relations has a meaning well established and distinct
from the word "classification", in the context in which it is
used, it does not make sense. The reference is to "their
former positions". The settlement assumes that every employee
covered by it has a "former position". However, they do not.
For example, Grimes and Craig have had former classifications,
but have held the same position of enforcement officer
throughout. They do not have a former position. Even after
the implementation of the settlement agreement their position
remains the same. What changes as a result is not the
position but the classification.
We have concluded that this case meets the stringent test
for finding latent ambiguity justifying reliance on extrinsic
evidence in order to interpret the document in question.
When considering extrinsic evidence relating to
negotiations that preceded the execution of the written
agreement, the Board must ascertain whether that evidence
.indicates that the parties had reached a common understanding
as to what the written words mean. Sometimes, extrinsic
evidence may not reveal such a common understanding. While
the parties may consent to the language used, it may be that
each party had a different understanding as to what that
language means in the particular agreement. Where this is the
case, the extrinsic evidence will be of no assistance in
interpreting the written document. The Board then will have
to objectively interpret the language as written.
In the present case, we heard 'detailed evidence from
employer and union witnesses who were'involved in a series of
negotiation meetings that preceded this settlement. The key
witnesses were the respective chief spokespersons who struck
the ultimate deal between them with the assistance of
mediator. On the disputed language, employer chief
spokesperson Ms. Kathy Brown testified that throughout the
negotiations the employer persisted with the position that an
employee's years of service in the classification he held as
at April l, 1986 determined his or her grid placement
effective April 1, 1986 and that from'there you move forward
in time to determine the grid Placement under the new
classification. She testified that while the union had
initially fought for a step for step grid placement, she
understood that the union accepted theemployer's position at
the end. She further testified that during negotiations
neither side was concerned about employees' positions and that
she was not even aware what positions existed. She testified
that always the discussion focused on employee
classifications, although the words "position" and
"classification" may have been used interchangeably. It was
her understanding that the phrase "former positions" was used
in the agreement to refer to former classifications.
Mr. Gould, the union's chief spokesperson, who struck the
deal with Ms. Brown testified that he did not understand that
the union team at any time gave up its step for step position
on grid placement. While he may have subjectively believed
that, his belief is not consistent with our objective
interpretation of the evidence, including Mr. Gould's own
testimony.
The evidence establishes that this was not a case where
the parties went away with different understandings as to how
the'agreement works. It is clear that both sides used the
terms "classification" and "position" interchangeably during
the negotiations. More importantly, under cross-examination
Mr. Gould admitted that when he used the phrase "years of
service in their former positions", he meant to refer to the
employees' former classifications. The evidence also
establishes that when Mr. Gould wrote "presently classified"
in para l(a), he meant classified as of April 1, 1986. This
14
is consistent with the evidence from both employer and union
witnesses that the intention was to start at 1986 and move
forward in time to place an employee on the grid. The
drafting of the.language was left to Mr. Gould. Mr. Gould
candidly admitted that he had to struggle trying to put into
written form a complex agreement. Nevertheless, the extrinsic
evidence establishes that the parties~had understood that the
new classifications would be implemented effective April l,
1986 and that from that date the parties intended to move
forward in time. That is consistent with the use of the phrase
"or such other later date as may be appropriate" which is
clearly intended to permit the inclusion in the settlement of
employees who joined subsequent to April 1, 1986.
Similarly, the evidence is not in dispute that the
parties intended to count the employee's years of service in
his former classificattion in determining grid placement.
Both employer and union chief spokespersons testified that the
negotiations were concerned with classifications and that the
words "position" and "classification" were used
interchangeably. Mr. Gould candidly admitted that when he
used the phrase "in their former positions" in the document he
meant to refer to former classifications.
The evidence indicates that the language used by Mr.
Gould does not clearly convey the intention of the parties as
15
agreed upon~ As union counsel points out the employer team
had an opportunity to review the language prior to signing and
to point it out. However, the role of this Board is not to
penalize one side or the other for its inadequate drafting or
negotiating skills. Our role is to ascertain the true
intention of the parties.
The evidence before us establishes that the deal struck
between the parties was in substance complied with in the
manner the employer applied its terms to the grievors Grimes
and Craig. The written document, when interpreted in light of
the evidence relating to negotiating history confirms that.
Accordingly, the grievances are hereby dismissed.
Dated this 27 day of March, 1995 at Hamilton', Ontario
N. Dissanayake
Vice-Chairperson
M. Vorster
Member
M. O'Toole
Member