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HomeMy WebLinkAbout1991-2774.Root et al.96-01-23 ONTARIO £MPL O¥~S DE LA COu~ONNE CROWN E~,_OYEES DE L 'ONTARiO GRIEVANCE COMMISSION DE' SETTLEMENT R GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG IZ8 TELEPHONEIT~-L~-PHONE : (416) 326- I388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) MSG 1Z8 FACSIMILE/T£1..~'COPtE :(416) 326- 7396 GSB # 2774/91, 2775/91, 2776/91, 2777/91, 2778/91, . 2779/91, 2781/91, 2782/91, 2783/91, 2784/91 OLBEU # OLB259/91, OLB257/91, OLB256/91, OLB255/91, OLB258/91, OLB249/91, OLB253/91, OLB252/91, OLB250/91, OLB251/91 IN THE MATTER OF AN /%RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Root et al) Gri evor - and- The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: B. Fisher Vice-Chairperson FOR THE M. McFadden GRIEVOR Counsel ~ Koskie & Minsky Barristers & Solicitors FOR THE R. Drmaj _ ! EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING August 15, 16, 1995 This case involves a dispute as to whether or not Help Desk Analysts (who are classified as Systems Officer l Point of Sale) are entitled to a Shift Premium. Under Article 6.15(a) of both the previous COllective Agreement (Effective January 1, 1989, referred to as the "Green Book") and the current agreement (effective January 1, 199I called the "White Book"), where classifications in'the Salary and' Classification Schedule are shown as being entitled to a Shift Premium, Article 6.15(a) provides for a set dollar amount per hour. Under Article 6.5(a) of both the Collective Agreements, where the Salary and Classification Schedule indicates, that the classification is not entided to a' Shift Premium, then the employee is entided to overtime for certain hours. It is clear that according to the White Book, the Grievor is not entitled to a Shift Premium, rather he is entitled to overtime. However, the Employer takes the I' position that the White Book is not the real Collective Agreement, as it was not signed, off, nor does it reflect the negotiated position of the parties as(reflected in the Memorandum of Settlement reached at the negotiating table. In the alternative, the. Employer argued that the White Book contains a mistake that should be rectified. The parties agree that this Help Desk Analyst position was created while the Green Collective Agreement was in force and prior to the White Collective Agreement coming into force. The position was posted as being subject to a Shift Premium. During the negotiations leading up to the White Collective Agreement, the Union proposed to'change the Help Desk Analysts from Article 6.15(a) (Shift Premium) to overtime under the Article 6.5(a). This proposal was not accepted by the Employer. When the Memorandum of Settlement was signed, it contained no reference to changing the Shift Premium status of the Help Desk. Analysts. An order in Council followed, Which incorporated the changes in the Memorandum of Settlement, but again made no reference to the Help Desk Analysts. At this point it seems quite clear that the parties had agreed that the status quo of the Help Desk Analyst was to remain unchanged and that it would be a · . position which attracted a shift premium. ~ Then the Employer agreed to put together the actual new Collective Agreement and all its schedules, including the Salary and Classification Schedule. However, in doing so, it made a clerical mistake and indicated that the Systems Officer were not entitled to a Shift Premium. On September 10, 1991, before the White Book was distributed, Mr. Ford Luet, the'Supervisor Of the Help Desk, was given a .'copy of the Bargaining Unit Salary and Classification 'Schedule. The memo advised him that 7should you have any questions with, respect to the attached, please do not hesitate to call the Corporate Compensation Section of the Human Resources Division." Mr. Luet noticed that the Help Desk Analysts were incorrectly shown as not being entided to SI'aft Premiums. He immediately advised the members 'of Senior Management of the error. He was told 'by these senior managers to ignore the memo and keep on paying the shift premiums. When the White Book came out, Mr. Luet again noticed that the appropriate change had not been made. I also l~e~rd from Mr. Wayne 7achar, Manager of Employee Relations. He was responsible for converting the Memorandum of Understanding into a final Collective Agreement. He became aware of the Help Desk error before the White Book was released and instructed his staff to make the correction before the White Book was distributed. They failed to do so and the next time Mr. Zachary became aware of the issue was when the grievances were filed some time. after the White Collective Agreement was published and released. Both of the parties have referred to the White Collective Agreement as the valid collective agreement since its publication. On page 143 of the White Collective Agreement are type written names of the parties who represented their: respective parties. This format of typewritten signatures is similar to the practice adopted in the 15rovisions of the Green Collective Agreement at page 125. t am satisfied that a collective agreement need not contain the actual signatures of the parties. (Re Canteen of C~nada a~d RWDStJ, Lo_ca.1 414 at p.15, L.A.C., (3d) 305, Mitchnick). I find, therefore, on ,the evidence that the White Collective Agreement is, in fact, the relevant Collective Agreement. The next question is whether or not I have the power ko rectify the Collective Agreement in this case. , The issue as to whether or not an arbitrator has the power to rectify a clerical mistake in a collective agreement is well'summarized in Brown & Beatty, Canadian l~abour Arbitration at pages 2 - 35: 2:1440 Rectification To rectify an agreement simply means to alter the written words so that the,/ reflect the actual agreement between parties. At one time arbitrators were of the view that they had authority to rectify collective agreements by applying the doctrine of rectification, as it had developed at common law, to correct a mutual mistake. It was said that his doctrine should be applied with caution in view of "'the rather sophisticated world' of collective bargaining Where the parties are almost invariably very careful to write down exactly what they have .agreed to". However,. the. Supreme Court' of Canada, invoking the principle that an arbitrator has-no inherent powers to amend, modify or ignore a collective agreement, has held that, unless there is a specific authorization in the collective agreement, an arbitrator has no power to apply the doctrine of rectification regardless of whether the arbitrator is a consensual arbitrator or a statutory one. Although that conclusion has been. challenged, apart from in British Columbia where a statutory basi~ is provided, most arbitrators have held that they have no jurisdiction to rectify an agreement even where th~ error is typographical or mechanical. More recently, however, arbitrators have expressed the view that there are two divergent and irreconcilable lines of authority in this area, and that in circumstances where a party can show that · the rectification will reflect the parties' true intentions, the better view is that the arbitrator should have iurisdiction to rectify. : The Collective Agreement, of course, contains a provision limiting the power of the GSB: ~ ~ Article 7.7. I0(a) ~'The Crown Employees Grievance Settlement Board ·shall not be authorized to alter, modify or amend any part of this Agreement nor shall the Crown Employees Grievance Settlement Board give any decision inconsistent with the provisions of this Agreement.*' t accept the "better view" that arbitrators do have the power to rectify clear clerical mistakes in .a collective agreement for to not do so would result in applying an agreement that the parties truly did not reach. This thinking is well set out in the decision by Wailan Low in Re Casa Verde Health Centre and Service E,mployee,~ International Union, local 204 33 LAC (4TM ) 284: "Counsel for the Union referred me to a number of cases supporting the proposition that an arbitrator, and in particular an arbitrator appointed pursuant to statute, has iurisdiction to rectifi/a written collective agreement in order to give effect to the true agreement between the parties. The decision of arbitrator Devlin in Re Ethyl Canada Inc. and E. C. W. U., Loc. 300 (1987), 26 L.A.C.' (3d) 201, is, on its :am, virtually indistinguishable from the instant grievance. In that case, there was a clerical error resulting in the deletion, of a. provision disentitling an employee to benefits in circumstances where he became disabled while performing duties for another employee. The parties had not bargained for such deletion and there was no agreement to that effect. The~e had, been a mistake. In the collective a~reement before arbitrator Devlin, there was a clause providing that "the arbitrator shall not have any authority to change, modifi/ or supplement or otherwise, alter in any respect whatsoever this agreement, or any part thereof... Similar[y, the provisions of the Article shall not permit the arbitrator to change, modify or supplement the contents of the Company's benefit plans as negotiated between the parties". Arbitrator Devlin considered that clause, which is the equivalent to the art. 1 t.05 of the collective agreement before me and she held .[at p.208}: "In my view, these restrictions are designed to prohibit any change or amendment to the true agreement and were not designed to impose upon .the parties the results of a clerical error or omission which was never part of the bargain that the,/ struck." She agrees with the decision of Professor Arthurs in. Re Alcan Canada Products Ltd. And Metal Foil Workers; Union, Loc. 1663 (1982), 5 L.A.C. (3d) 1, which was also relied upon by the union. Professor. Arthurs, after considering the applicability of the Metropolitan Toronto Police Assn. v. Metropolitan Toronto Board of Commissions of Police (1974), 45 D.L.R. (3d) 548, [1975] I S.C.R. 630, 74 C.L.L.C. 14,223, and Port Arthur Shipbuilding Co. v. Arthurs (1968), 70 D.L.R (2d) 693, [19691 S.C.R. 85, 68 C.L.L.C 14,136 sub nom. R. v. Arthurs, Ex p. Port Arthur, came to the conclusion that those cases are distihguishable and are not authority for the proposition that an arbitrator 'has no power to rectify a collective agreement when the parties are agreed that the written document does not express the true consensusl I would agree with Professor Arthurs that to.give effect to the'language of the written collective agreement between the parties rather than to enforce the · agreement between the parties. In'my view, by rectifying the written collective agreement to conform to the bargain made by the parties is not to alter, add to, subtract from, modify or amend the agreement. It. is simply to put the written expression of the real agreement into form which the parties intended. A distinction must be drawn betWeen the agreement betWeen the parties, which may exist whether it is embodied in .written form or not, and the written form of the agreement Which is the tangible evidence, of the agreement;·it is not the agreemertt itself. Accordingly, an order wi.t{ be made rectifying the written form of the collective agreement to provide at art. 35.03 that the employer agrees to pay 100% of the premiums for $25,000 life insurance. Applying those principles to this case, I find that there was a clear clerical mistake when the Employer Prepared the White Collective Agreefnent which showed the Systems Officer 1 - Point of Sale as not being entitlefl to the Shift PremiuTM. Moreover, this mistake is the type that I have the power to rectify and should so rectify. The grievance is, therefore, dismissed. Dated at Toronto this 23 day of January, 1996. B.~B~. FISHER, Vice-Chairperson