Loading...
HomeMy WebLinkAbout1993-2151.Werner-MacKeler.94-12-05 " ) r~ " .;:::.:...,:i' , \4 1u {!Ii :1 ~ " ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO ! ! 1111 GRIEVANCE COMMISSION DE I' , . SETTLEMENT REGLEMENT " ' BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, MSG lZ8 , TELEPHONE/TELEPHONE (416) 326- 388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) ,MSG lZ8 FACSIMILE /TE~ECOPIE (416).326-1396 2151/93 IN THE MATTER OF AN ARBITRATION i J Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Betore THE GRIEVANCE SETTLEMENT BOARD ,BETWEEN OPSEU(Werner-MacKeler) j Grievor - and - The Crown in Right of, Ontario (Ministry of Natural Resources) Employer BEFORE S Kaufman Vice-Chairperson ! E. Seymour Member M. Milich Member FOR THE G Adams GRIEVOR Grievance, Officer Onta~io Public Service Employees Union FOR THE D. Costen 'j EMPLOYER Counsel Legal Services Branch Management Board Secretariat Ministry of Community & social Services HEARING July 29, 1994 . ; .' - - --.- -- -- -- ~- _i;'. ~ ",-. )" 1 ~\ AWARD 1 This case proceeded on the ,basis bf art Agree<;i Statement of Facts, which is set out below. The references to the ,attachments thereto have been deleted L Up untiJ; June 29, 1992, the grievor, Mr Hans W~rner-Mackeler, wa~ empioyed by the Ministry 'of Natural Resources as a district services techni- cian, serving the former Brockville District 'of the 1 Ministry Mr. Werner-Mackeler was classified at the Resource Technician Senior 1 p~TS ~) level. At the time, he repor,ted to the District Administ.ra- tive Supervisor. i. Effective June 29, 1992, the Ministry reorga- nized its operations. In this reorganization, the Ministry changed the manner it administered its work. In some cases district offices were elimi- J nated 'The fire management program, accordingly, altered its structure. 3. As a result' of this reorganization, the grie- vor's position wCisrecla,ssified from a District Services Tectulician at the RTS1 leveL to that ,of a fire te9hnician. His new classification was that of a Resource Technician 3 (RT3) . There is no issue between the parties as to the appropriateness of this reclassification. 4. Th~ assignment of the grievor wa~ made pursu- ant to Article 5 2.1 of the present collective agreement. . . . As noted, there is no dispute between the part~es in this grievance as to the appropriatenes~ of the assignment. Rather, the dispute between. the parties is over the is.sue of how thegrievor's salary wa~ detennined, by the Ministry after his po~'ition was reclassified. 5. While the grievor' s posit'ion was classif;ied at RTS l'level. his position was assigned to Schedule 6 ,~ of the Collective Agreement. The normal work week for Schedule 6 employees is 36 1/4 hours (,See Article 7.3 of the collective agreement.) 6. The grievor' s new position at the.IRT3 level is Schedule 4 and, accordingly, the normal work week is 40 hours. (See Article 7.2 of the collective agreement) 7. The grievor'ssalary immediately prior to the , .;; ~ - -~~ - .-- ~, - ---~---------"'- - - _.._.~ ., :~ 2 time of the reorganization was $793.30 per week, which represents an hourly rate of $21 88 per hour multipli~d by 36 1/4 hours. 8. The salgry rate of an RT3 at the time of the reorganization was $712 42 per week. This level is arrived at by a (sic,) multiplying the hourly rate of $17 81 by 40 hours 9. Article 5 2.1 reads: '" ~ ;'Where the duties of an empioyee are J changed as a result of reorganization or reassignment of duties and the position is reclassi,fied to a c].ass with'a lower maximum salary, an employee who occupies the position when the reclassification is made is entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum ~alary of the - high~r -classification that takes effect during the salary cycle in which the reclassification takes place" 10. Originally, the Ministry used the grievor's weekly RTS 1 salary of $793.30 to determine appro- priate salary protection for his assignment to the RT3 classificafion. 11. On August 22, 1992 [the grievor] sent a letter to the local Article 26 cbnrrnittee requesting clari- fication on the salary guarantee and hours of work. In that letter he argued that he should be compen- sated for increased hours of work since his work schedule changed from 36 25 hours per week to 40 hours per week, as a result of the reclassification. \ 12. On August 24, 1992 the co chair of the commit- tee wrote to Jim Anderson, the Kemptville District Manager with a copy to the grievor advising that the complaint was in their mandate and that the I' gr~evor and the other employees whose schedules 1 were similarly changed would be compensated for 40 I I hours per week r~troactive to June 29, 1992, the - I effective date of the grievor's reassignment. 13. On september 8, 1992, J. S Anderson wrote to the grievor acknowledging the grievor's complaint and confirmed that the salary level would be adjus- ted in accordance with the number of hours worked in his present position. The effect of this was that the grievor would have salary protection of . ~is old RTS1 hourly rate of $21 88 per hour multi- "" ~ ~ - ~--- .- "" ,- 3 -~ t plied by the number of hours required ~or his ,pre- sent new RT3 pbstiion(40 hours). His new salary rate became $875.20 per week. 14. In mid-March 1993 human resources of the Ministry identified what it feltw{is incorrect salary treatment of staff red-circled following the reorga~ization. Their position was that salary protection under article 5.2.1 meant that the weekly salary rate of the former position was the \ amount protected and not the old hourly rate multi~ I plied by the new pos~tion's number of hours. After J cqnsulting staff relations of the Ministry and Management Board Secretariat, the Ministry advised ( the staff of the allege~ incorrect treatment I I 15. On October 25, 1993, Mr. Tom Jones wrote to the grievor advising him of the error in salary treatment and confirmed that his new adjusted rate would be $793.30. The change went into effect with the November 18, 1993 paycheque. The letter also indicated there would be llQ recovery of the over~ payment that occurred up until that time. From June 29, 1992 through to the date of Mr. Jones' letter, the grievor was receiving a weekly salary o:f, $875 20 16 On November 25, 1993, the grievor submitted his written grievance alleging that the Ministry had violated his rights specifically but not exclu- sively under article 7.6 of the collective agree- ment and requested compensation in accordance with this article retroactive to October 25, 1993. 17. For ease of reference, Article 7.6 reads: J. "Where the employer intends to transfer employees or an employee from one sche- dule to another schedule, the employer will discuss the transfer with the union prior to such a transfer. When the transfer occurs the employee's weekly salary based on his basic hourly rate shall be adjusted accordingly. 18 The parties agree that the board of arbitra- tion in this matter is properly constituted and has full authority to hear and resolve this matter. The issue in dispute is whether, by denying the grievor a salary adjustment under Art 7.06, the employer has breached the collective agreement. . ~ > ) " ~, 4 At the outset of s~bmissions, the Union sought to pro- v,ide the board with a copy of an award in a case that had , been processed and decided under Art 27 18, the Expedited Arbitration Procedure. Art 27.18 5 provides in par,t In arriving at a decisio~ th~ arbitrator shall be limited to 'the, consideration of issues outlined in the statement of facts referred to in sub-section / I 27.18.4,. . Art. 27.i18 7 provides: > In every case the. arb~tratorshali issue a brief written decision .no later than twenty (20) days ( from the date of the hearing Art. 27.18.~ provides: Decisions reached through this Expedited Arbitra- tion process shall have no precedential value,~ with the exception of cases dealing with discipline and dismissal. The awarq that the union sought to provide this board did not deal with discipline and dismissal -.. I This board ruled that it would not receive the ca~e or consider it. The board was of the unanimous view that it must honour t;.he expr13SS intention of the parties that such awards would not be binding It was of the unanimous view that to consider the award at the request of one party would put the board at risk of appearing biased, and at risk at minimum of appearing of having permitted itself to be influ- enced by an award that the parties decided would have no pre- cedential vCilu,e, thus giving it the appearance of having "tainted" its consideration of the matters in dispute, as well as put it at risk of' having in fact been influenced by ) that award Althoug~ Art 27 18 8 does not specifically pro- hibit a board from accepting and reviewing such an award, the spirit and intention of the Article is clear The board also unanimously concluded that to accept such an award would set a precedent that would Qenefit neither of the parties to the collective agreement in future . \ ~ - .. - - -- -_. -"- - ~- - ._-- .- -~.- ~.. - ----- ----- ----~ --- - - .. - -' J " 'i) 5 The ArgUJilents: ~ 1. Whether the grievor lodged a grievance on August .11, 1992 The union argued that the grievor filed his official complaint dated August 11, 1992 (Ex. 3) pursuant to Article 27 re the Grievance Procedure, and not pursuant to Article 26 re noti1ication and consultation regarding Closure/Divest- ment/Relocatio~ and the creation of a committee in respect of same. ~ The employer argued that the grievor's compl,xint was not a grievance because the grievor had not complieawith Art 27.2.1, which provides: An employee who believes he has a complaint or a difference shall first discuss the complaint or ,difference with his supervisor within twenty (20) days of first becoming aware of the complaint or di,fference. It was not in dispute that the grievor had not discussed his complaint with his supervisor. The union submitted that the lack of discussion of, the complaint with thegrievor' s super- visor is not a bar to a grievance. The employer also submitted that no difterence arose until November 25, '1993, the date of the letter to the 9rie- vor from the Southern Region Human Resources Coordin~tor advising that his pay would be readjusted to $793.30, which is the date upon which the grievor filed a gri~vance on an OPSEU grievance form (Ex. 7). In Whibley (940/85) the board considered and concluded that the requirement in Art 27.2.1 of discussing one's com- plaint with one's supervisor prior to submitting a written grievance was directory rather than mandatory. At p. 23 of its May 9, 199,4 interim decision in Chircop (3039/92) the board again determined that Art. 272.1 was directory rather than mandatory. The board therefore concludes that Art. 27.2.1 is not a bar to the instant grievance. . - . -, - -,.-.... - ~--- -,---- - --. ------------- ~~-- ----- --_._~-"-~ -- -' ---'- - ' ' ,- - -- ---..--- -------------- - ~~ ----- ------ 't \ 6 ., Turning now to tJ::1.e submission, essentia:j:ly, that the grievor's complaint dated August 11, 1992 cqnstituted a grie- vance within the meaning of the collective agreement, para- graph 4 under the heading "Functions" in the Minutes of Understanding re th~ Article 26 Local committees (Ex 1 ) contains the following statement: i If problems are identified in the staffing outcome the Committee may recommend actions to the approp- J riate District Manager/Branch Director, etc. Paragraph 5 under the same heading states: The committee will rekpond to individual written questions arising from the staffing process in their area Individuals not satisfied with Com.." mittee response have the right to proceed to indi- vidual grievance ~n accordance with the Collective Agreement. An Article 26 committee is composed of members of the bargaining unit ,as well as management, and is described as a joint committee Ex. 3 is a memo dated August 11, 1992 from the grievor to the Co-Chairs of the Kemptville District Article 26 Com- mittee on the subject of the salary guarantee and, his new hours of work. ~t alleges that the grievor is not being paid properly and in accordance with the collective agreement, and that the grievor should be receiving the hourly rate of, an RTS1 of $393 30 I 36.25 hours per week = $21.88 x 40 hours per week to reflect the grievor's red-circled hourly rate and his increased hours per week. It requests clarifi~ation from the committee. It does not state that it is a grievance and does not purport to be a grievance on its face in any manner. Neither the collective agreement nor the Minutes of Understanding re the Article 26 Committee give the Committee Co-Chair the authority to stand in the place of the grievorLs supervisor, who under Art. 27.:30 1 is the first to receive a written grievance at Stage One of the Grievance Procedure and who may have the authority to settle it, nor do they confer upon the Committee the authority of the Deputy Minister or . his designee at Stage Two of' the grievance procedure The . ~ ~ 7- -, board agrees with the union's submission that there is some value to "utilizi:ng the complaint process". However, the I Minutes of Understanding re the Art. 26 Committee and Art. 27 of the collective agreement distinguish between the complaint and grievance processes and do not equate them. The submis- sion that the grievor'scomplaint to the Article 26 committee constituted a grievance ~nder Art. 27 is not supported by the fact:ts. To determine that the August iI, 1992 memo was a grievande would constitute an alteration, change or amenqroent ) to the collective agreement contrary to Art. 27.16 and exceed this Qoard's, jurisdiction under the collective agreement. 2. Was there "a binding settlement" of the grievor's complaint in 19921 Brian Burns, Co-Chair of the Kemptville District Article 26 Committee wrote to District Manager J S. Anderson on Au- gust 24, 1992 (Ex. 4) advising him that the Committee and Redeployment Co-ordinator Enid Boone had agreed that the grievor "and all other employees who have changed schedules requiring more hours will be paid for those extra hours" ,at the hourly rate of the former rate (if higher). J S. Ander- son, District Manager of the Kempville District sent a memo to the grievor dated September 8, 1992 stating: I am in receipt of a complaint advanced by you, with regard to wage levels associated with diffe- rent hours of work in your new job within our or~ ganization. I am pleased tnat our Human Resources people were able to clarify the process of payment associated w~th an adjustment in hours worked per week I trust this matter ~rt (sic) now in order The union argued that the August 24 and September 8, 1992 memo constituted "offer and acceptance". It argued that this completed the final and binding settlement of the com- plaint. It argued that the matter had been dealt with by j responsible agents for the grievor and the employer i.e. the Union, the Redeployment Coordinator, the Article 26 Committee and the District Manager, to their mutual satisfaction. The . ~ , - , , ,~ ~- -------- - '" 8 union acknowl~dged that District Manager Anderson did not have the c;luthority to "bffer and endorse the settJ,.ement", but \..- argued th~t the'set.tlement was not ambiguous. It submitted that if the settlement was "legitimate" , this board has the authority to review it and to compel its performance The union acknowledged that the Grievance Settlement Board has found a settlement binding only where it had been reached at Stage One or Two of the grievance procedure It argued ~hat the board -had reviewed those settlemen~s which were unclear and improperly resolved, and submitted that "clear" settlements do not require review It submitted ( OPSEU (French) and St. Clair Community College (unreported) ) July 13, 1992 (Shime) in support of its submissions. The union requested the board to not communicate to the parties that they must launch a grievance in all cases in order to pl:"eserve their I:ight to mak~ a settlement binding, and sub- " mitted that. in some instances agreements which ~re contrary I , " to the collective agreement are "useful". , , The employer submitted that the parties knew th~t the I , Art. 26 committee's Memo was not binding upon the Ministry, that the attempt to elevate Mr. Anderson's letter to a set- tlement of a grievance overstates the case, that the situa- tion before this board was not comparable to the OPSEU (French) and St Clair College case, that the Ministry had recognized and corrected its mistakes and that it did not try to reclaim an overpayment, consistent with the reasoning in ) OPSEU (Ross) 82/77. The employer urged the board to adopt the reasoning in Ross at p 14 through 19. The board acknowledges and agrees with the general prin- ciple in French (supra) " .to allow a party to resile from an agreement once reached would create uncertainty... " Arbi- trator Shime went on to state that uncertainty would be crea- ted "in the process because a party would never know when a matter had been resolved and accordingly the settlement of grievances would be discouraged" (emphasis added) In empha- sizing that this proposition applies to settlements o~ grie- . ( ---- -- ....- . r~ 9 vances reached in the grievance procedure" this boaFd does "- not wish to appear to discqur'age efforts to resolve com- plaints prior to grievance However, outside of the grie- vance process, and in the context of a large administration such as a government Ministry, an agreement reached by an - employee or employees and management representatives as to the interpretation of rights under the collect.;i.ve agreement will not! nece~sarily be ~inding unless the interpretation is upheld by a board of arbitration, or unless th~ formal re- quirements o~ an estoppel are met and the~equities of the case ~eigh in favour of the parties' agreement being upheld. In the context of a collective agreement there is a I depar'1;urefrom the general contractual rule that "contending I I parties are entitle~ to rely onon,e' another's wor~ in order I to effect a settlement" which is binding That departure was discussed by Arbitrator Adams, as he then was, in Ross, (82/77) In Ross he favoured ap industrial relations orien- ted approach, as opposed to a contractual approach. In that case a Personnel representative's mistaken application of the directives in the Manual of Administration regarding the grievor's pay resulted in him receiving an overpayment for a p~riod of about 9 months The employer sought to reclaim the overpayment. -At pp. 13-15 of the award the Arbitrator stated ...a more industrial relations oriented approach is much less influenced by a technical, construction of what was said as opposed to what is the fairest and most reasonable outcome in all the circumstances. .;.this view would be sensitive to the industrial relation~ implications of enforcing the strict wording of [the letter of the Personnel Representa- tive]. ...By enforcing it we would spare Mr. Ross of any financial inconvenience of having to repay money for the period that he has likely expended by now. But its enforcement also allows him to claim monies from the employer for the period ... which he would not have received had the error not have been made and which, in similar circumstances, any other employee in the employ of the government is unlikely to have received.' Thus it can be ar- gued that Mr Ross is requesting the perpetuation of unequal treatment on the basis of an adminitra- . tive error' . ~ 10 . . . The contractual model fully supports his grie- vance ... The industrial relations view... would not permit the employer to reclaim $337 43 which Mr Ross is likely to have expended in the quite proper belief he was contractually entitled to it. But being sensitive to unequal treatment, this model would, ..."e think, lean against perpetuating ~he effects of the error into the future without any evidence that Mr. Ross had detrimentally relied on i the assumption he 'would receive all future increas... I es at the third step. , Increasingly, boards such as this one are being criticized for taking too legalistic an approach to labour relations matters under collec- tive agreements. .. In fact recently reviewing courts have begun to recognize the, unique nature of the collective ag~eement and to quest~on the appro- _/ priateness of a strict application of the r'l.lles' of contract, rules which evolved in dramatically dif.... ferent contexts. At p 16 of the award, Arbitrator Adams quoted Mr. Justice Laski,n in McGavin Toastmaster Ltd. and Ainscough et . al. (1976), 54 D.L R. (3d) 1 (S C. C ) as cited by Mr. Justice Brooke in Re Blouin Dry--wall Contractors Ltd. and , , united Brotherhood of Carpenters and Joiners of. America, . " Local 2486 (1976), 57 D L.R. (3d) 199: . .The common law as ~it applies to individual ) employment contracts is no longer relevant 'to' employer-employee relations governed by a col- lective agreement which. deals with ..a host of other matters that have been negotiated between union and company as the principal parties thereto. I The Arbitrator stated, at pp. 18-19 . cases like ,Blouin.. Drywall . . tell us. .that contractual rules ougnt not to be blindly ~dopted and applied in a labour-relations cont.ext Some rules e.g. those dealing with doctrine of fundamen- tal breach have no application, whereas others, like the parol evidence rule. .may be quite appro- priate if applied sensitively In situations' of this kind we are concerned about the rigid application of the rules of offer and acceptance where no detrimental reliance is established or relied upon and where, potentially, unequal salary payments could arise and create . --- ~ ~ - --- ~--- ---- --- --- ---~--- ~-------- - -_.- - --~ - -~ - -~ ~ ----- . '.~ 11 " . significant workplace problems .Subject to the establishmen,t:. of significant detrimental,reliance we think the 'more common sense industrial rel~tions response should [not] be [to uphold agreements based qn error]. These kind (sic) of administrative errors are bound to occur in the context ofa large bureaucracy and thus it is not a very realtistice" (sic) answer to say that the employer should simply be more careful However in the same situation the employer should not be allowed to reclaim from the employee monies paid to him before this kind of an er~or was discovered. This board agrees with the above reasoning. f Art. 26 of the collective agreement provides: 26.1 Where a reorgahization, or the closure of a facility, or the divestment, relocation or I ~ contracting-out of an operation in whole or I I in part will result in twenty (20) or more I " surplus employees in a location, I I I I a) affected employees shall receive as much I I notice as possible, but in any case shall I I be notified of the imminent reorganiza- I tion, closure, relocation or contracting- \ out not later than nine (9) months in ad- vance of th~ proposedreorga~ization, closure, div~$tment, relocation or con- tracting-out, and b) the President of the Union shall be noti- fied of the reorganization, closure, divestment, relocation or contracting-out at least sixty (60) days prior to notifi- cation to affected employees, and c) a committee sh~ll be formed by the par- ties at the affected location to provide for consultation and cooperation in order to minimize the adverse" effects upon em- ployees who have been identified as sur- plus to requirements,. ! \ 26.2 The lJhion may be represented on the commit... tee by a Union staff representative and up to three (3) employees at the location in- volved and the ministry agrees to grant leave with no loss of pay and with no loss of credits to attend committee meetings 26 3 With mutual agreement, the Union and the, Employer (as represented by Management Board of Cabinet) shall meet to disQuss system- --~-_._._- - - '~ 12 wide matters concerning closures, divest- ments, relocations or contracting-out. \ The board concludes from the language of the Art. 26 that the parties' intention was to create a consultation committee to minimize adverse effects upon the employees The broad language of this article does ~ot empower the committee to make binding and system-wide determinations concerning salary -- changes of reclassified employees Clearer language than is I .- found irl Art. 26 would be required to authorize the committee to make such determinations. ~eturning to the un~on's submissions, the determiRation , of the Union, the Redeployment C.oordinator and the Article 26 Committee was not reached in the context of a grievance F~rther, mere clarity of a determination of a complaint prior to grievance will not put it beyond the scope of arbitral review and clarity is not sufficient in itself to result in I I the determination being upheld. For all the foregoing reasons, the board concludes that the ,decision reflected in Mr. Burns' August 24, 1992 letter (Ex. 4) and Mr. Anderson's September 8, 1992 memo (Ex. 5) was not a "binding settlement". 3. Are there any legal impediments or express prohibitions in the collective agreement to the union's interpretation of . ., the grievor's entitlement? The union argued that the fact that the grievor would receive both the benefit of red-circling under Art. 5.2 1 and also payment for additional hours under Art 7.6 did not con- stitute a bar to its interpretation of his rights under the collective agreement It submitted that in Waugh (1661/91) the board ruled at p. 11 that it had no jurisdiction to amend part of a Memo of Settlement ev~n if it resulted in a wind- fall to the grievor in particular. JThe employer argued that giving the grievor the benefi.t of both red-circling under Art 5 ,2 1 and also a salary ad- justment under Art. 7 6 constitutes pyramiding. The union . --~---- ;0 I I I ~ 1 13 I argued that its proposal would not constitute a pyramiding ot benefits and did not offend the collective agreement It submitted that because the grievor was not ,asking that premi- um rates be paid more than once for the same pours worked, \ "the arbitral aversion to the pyramiding of premium r.ates had no application". It should be clarif~ed that in the Waugh case, supra', the griero+, a Tax Auditor 3, was being paid an extra $145.00 I per month on an ongoing basis pursuant to Minut~s of Settle- ment arising from an earlier grievance He was subsequently seconded to a management pos~tion classified as FAl8. The employer took the position that ashe was being paid as an FA18, he waS not entitled to receive the $145 00 ,per month, on the theory that he should not receive the dual benefit of pay at the FA18 rate and the $145.00 per month entitlement of a Tax Auditor 3 because he would benefit more than the other gr;ievo:rs in the earlier grievance. At p. 11 Arbitrator ois- sa~ayake stated ...This is a gratuitous benefit that flowed from the pC!,rties' c;lttempt to resolve a large number of individual grievances through a single package deal Sometimes em- ployees lose some of their entitlement in this type of i' deal. In this particular case the grievor benefitted. We do not find the result to be offensive as the emplo- yer appears to. Compromises of employee's and emplo- yer's rights is a necessary and inevitable by-product of the resolution of a complex situation. We have no jurisdiction to in eftect amend item (c) as it applies to this particular grievor because of the apparent windfall, any more than we would have juris- diction to do so in a situation where an employee com- p+ains that his full entitlement had been compromised by the terms agreed to. That is the agreement entered to and the parties must live with the results. The board agrees with the above passage It does not, how- ever, view th~ Waugh Miputes of Settlement of a grievance as comparable to the determination of the grievor's complaint by the Union, the Redeployment Coordinator and the Article 26 Committee in this case The board concludes that the reasons in Waugh db not assist it in determining this matt~r. . I 'I i 1 I i - - ---.--- ~ ---~-- . . _t'" '; 14 . with respect to pyramiding, the collective agreement provides; ARTICLE 21 - NON-PYRAMIDING OF PREMIUM PAYMENTS 21 1 There shall be no duplication or pyramiding of any premium payments or compensating leave provided by this Agreement. "Premium paymeI1ts" generally refer to rates of pay in excess of and additional to the employee's regular hourly ~ate, e.~.shift premiums, holiday pay, payment in lieu of ho- I ' lidays, and oVRrtime. "Pyramidipg" generally refers to pay- ment of two or more such benefits for work done in the same period Palmer & Palmer; Collective Agreement Arbi~ration in Canada~ 3rd ed. (Toronto: Butterworths, 1991), 124. There ,~ is a presumption. against an, interpretation of a collective agreement which would result in the pyramiding of benefits, and where two interpretations are equally reasonable, in the absence of specific wording in the contract or clearevi- dence,arbitrators should avoid the interpretation that would result in pyramiding: ibid. , 124-125 The issue of duplication or pyramiding was considered by thi~ board in Morin (74/77). In Morin, the ambiguity of the words "pyramiding" and "duplication" were considered, At. p. 8-9, Arbitrator Adams wrote This Board understands the phrase "pyramiding or duplic~tion of premi]lID payments" to mean the pay- mentof similar premium rates more than once for the same hours worked and not the triggeri~g of two separate provisions where the premium payments are to be made in relation to different hours of work. . . .while. there is a general aversion to the dup- lication of premium payments for cornmon hours of work, . the resolution of particular grievances may turn ,on the purposes underlying the premium, payment provisions under discussion. The case, however, turned on the board's interpretation of the phrase "the employer's previous shift". The parties created an express prohibition in Art. 21.1 against pyramiding or duplication, anc;l specified that "pre- mium payments" and "compensating leave" were not to be pyra- mided or duplicated Applying the maxim inclusio unius est . ! - - - - ~ -~ --- ------- ---_...!.----_------.-- ------- -~ -~--* --.- ,oj ! \ t- 15 exclusio alterius (the inclusion of one is the exclusion ,of another), the board Goncludes from inclusion of, the express stipulation in Art 21. 1, that the parties intended their prohibition against pyramiding or duplication to apply only to "premium paYIJlents" and "compensating leave", and not to other ,benefits ',- Although the board doubts that the salary "guarantee" in Art. 5 apd the ~alary -" adjustment" in Al:jt. 7 6 fall within the description ofa "premium payment" in Art 21.1., guided by Arbitrator AdamS' statement with respect to underlying put"pos,.es , it considered the purposes underlying Arts. 5.2.1 and 7.6. The underlying purpose of Art. 5.2.1 is to provide a measure of job and salary security and the underlying pur- pos~ of Art. 7.6 is to ensure that where an employee's 5che- '\ dule changes, his or her salary is "adjusted" to reflect the increase or decrease in hours of work. Thus it can be seep that although Arts. 5 and 7.6 each deal with compensation, the underlying purpose which each addresses is very diffe- rent. In view of all the foregoing, the Qoard c6nc~udes that compensating the grievor under Art. 7.6 in add1tion to the salary guarantee in Art. 5 does not offend Art. 21.1. 4. The Merits: does the employer's decision not to pay the grievor for 40 hours.a'week.in hisRT3 p~sition at his hourU rate as an RTS1,constitute a breach of the collective agree-, ment? The union argued that Arts. 5 'and 7 must be read toge.... ther. It submitted that although Art. 1.6 would enable the " employer to adjust the salary of a red-circled employee who was transferred to a position requiring fewer weekly hours of work downward, such adjustment downward would violate the salary protection guarantees of Art. 7.6 The board notes that the union's submission is, supported by the reasoning of the board in Holwerda (412/82). , . '\ - ----- -- -~--- ,-- '. . 16 '. The union argued that where an employee's Schedule is changed in that his or her hours are increased trom 36 1/4 to 40 per week, Art. 7.6 mandates that his "weekly salary based on his hourly rate . be adjusted accordingly". It submitted that its interpretation of the collective agreement did not offend the collective agreement, and upheld equiti and fair- ness It offered the hypothetical example of 2 employees, A and B, ~mployed in the sameclassfication and whose Schedule required them to work 36 1/4 hours per week at a salary of I $500.00 per week, who were each relocated under Art 5 and recla~sified to two different positions, each of which car- ried a lower salary and each of which carried a different Schedule designated under Art. 7, A to a Schedule 6 (36 1/4 hours a week) position and B to a Schedule 4 or 4.7 position (40 hours per week). It argued that under Art. 5 both would be entitled to continue to receive their red-circled salary of $500 00 Howeve~, the employer's position would result in employee B working more hours per week yet receiving the same red-circled salary as employee A, $500.00 per week, whereas employee A worked the same hours as formerly and received tne same weekly salary as employee B. It submitted that this in- terpretation and this result would be inequitable The employer submitted that the union was picking the favourable parts of each article in order to receive the higher salary, ahd that this would put the grievor in a bet~ ter position than lhe would have been under his old cla~sifi- cation The union countered that it was entitled to "pick the best parts of the collective agreement" for the benefit of the grievor. It argued that the fact that its interpreta- tion would provide th~ grievor more money than an ordinary incumbent of the RT3 position was not offensive in itself, and that the protection (presumably under Art 5.2.1, toge- ther with the 7.6 entitlement) was time-limited. It submit- ted that the employer's interpretation would cause Art. 7.6 to have no application to employees entitled to sala~y pro- -teet ion under Art 5, and that in such circumstances Art. 7.6 . , - , - ~ -~ .- ~- ---- ,- , 17 would be _written out of the collective agreement. It argued \ that a red-circled employee can earn more than an incumbent and no inequity is perceived. It submitted that it is just as inequitable for an employee to be required to do 4 more hours of work per week at the same salary as slhe received for less hours of work per week in the original position, as to increase the hours of the ordinary incumbent and not ad- just his! or her salary The employer argued that the board should not reach an '- interpretation of the collective agreement that would "en- hance a windfall" It submitted that in Haley (438/85), i.n ./ resolving the dispute of an ~ployee who had been promoted, the board stated and followed the conclusions in Lee (103/85) and OPSEU (1383/85), that the weekly salary as opposed to the hourly rate is used to ensure that an employee who has been .J promoted receives a financial reward It argued that because in Lee (supra) the board had determined that the weekly rate rather than the hourly rate was protected in Art. 5.5.1 (cur- rently Art. 5.4.1), the grievor was restricted to his red- circled weekly sal~ry. The union submitted that the section entitled "Pay on Assignment" in the employer's Human Resources Directives and Guidelines (January, 1991) (Ex. 9) supported its interpreta- tion of the collective agreement. The employer submitted and the, board agrees that the Directives provided no explicit direction as to how to resolve this matter It should be not- ed in any event that the collective agreement rather ttian the Directives govern disputes of this nature Haley, (supra) ~ The employer argued that as Art 5,.2.1 red-circled the grievor's weekly salary and created a buffer from the impact of reclassification, and becaus'e his current position does not carry the same responsibility, the 9rievor was not en- titled to the further benefit of an increase to his salary for the increase in the hours he was required to work each week. It argued that the third level of an RTS1's salary, found in Schedule VIII to the collective agreement, ~t p. . -- -.-.--.-.- .-.,-.- '" 18 ~ , "- 2is, i.e $793 30, is the salary level that i~ protected It submitted that if the parties had intended to protect the' grievor's hourly rate, they would have said ,so in Art 5.2.1. , I It argued that Art 5 2 1 isa buffer in a downward classifi- I I cation and entitles an employee to receive more money than ordinary incumbents Qf the position. It argued ,that as the RT3 ,position entitles the encumbent to $712.40 (in fact $17.81 p~r hour) for ~ 40 hour week, and that as the grie- I vor's red-circled salary was $793.30, this created an initi~l $80.00 per week advantage for the 'grievor, and that to use his old hourly rate of $21.88 multiplied by the new number o~ I hours he was required to work, I.e. 40, a~d paying the grie- vor $875.20 would result in him earning $160.00 more per week than the ordinary incumbents of the position to which he was reassigned~ It po~nted out that the RTS2 classification, the one immed,iately above the g:r;-ievor's former classification, does not pay $875.00 per week In the Lee case, supra, the grievor was reassigned from - a 40 hour per week position to a 36 1/4 hour per week posi- tion She grieved that she was entitled. under Art. 5.5.1 (currently 5.4.1) to continue to receive her weekly salary in her original position and was not obliged to accept a reduc- tion, of her salary under Art. 7.6 for the decrease in the hours she was required to work each week due to the reassign~ memt. Her grievance was upheld. Arbitrator 'Samuels, citing Palangio (227/S3}, stated that the purpose of the provisions in Art. S is "to provide employment stability and salary stability on the basis of seniority" He stated that Arts 5.5 1 (now 5.4.1 ) and 24 re Job Security ought to be read together and to be read literally. He concluded, after con- sideration of both articles, that the employee's salary, not rate of salary, was being preserved. He cited the definition ) of "salary" in The Concise Oxford Dictionary (New Edition 1982): "fixed payinent made by employer at regular intervals". ae said "The parties have demonstrated their acknowledgment of the difference between [the terms 'salary' and 'rate of . ~ - -.-------.-- - - :;; ~ 19 salary'] by using the words 'hourly rate' elsewhere in the agreement--for instance, Arts 3.2 1, 3 3, 3,. 4 . 1. and '7 7 [currently 7.6] This latter provision is important fqr us. [In Art. 7.7 {currently 7.6)]...the parties speak of the 'weekly salary based on his basic ~ourly rate'. In Articles 5.5.1 and 24, the parties speak simply of "s'alary , " . He con- cluded at p. 7 "It is the payment itself which is protected, not, the ~ourly rate used to calculate that payment". He said at p 8 that the cases he was given demonstrated that tl)e employer's past practice in such situations was inconsistent, and di~ not give rise to an estoppel in favour of either party, and that :the board was "left with interpretting the language of the collective agreement itself". Thus, in Lee, Arbitrator Samuels interpreted the grie- vor's entitlement under Art. 5.5.1 based upon the difference in the wording of the entitlement under Art. 7.6 and other articles. He concluded that she was entitled to the greater salary guarantee provided under Art. 5, which he concluded was not to be eroded by the applicatioq of Art. 7.6 despite a decrease in her hours due to a change in position As the reasons in Lee-did not address the entitlement of an em- ployee entitled' ~o Art. 5 protection whose new Schedule results ,in an increase in hours, this board finqs that the reasoning in Lee was confined to the circumstances of a red- circled employ~e whose new Schedule in a newly assigned position under Art. 5 resulted in a decrease in hours. ';['he union submitted the Mellun (0159/88) case with res- pect to its position on the merits. The employer submitted that the Mellun case turned on its own specific facts, and submitted that in the course of reaching "its decision the boarq commented at p 7 upon the application of Art 7.6. Mr. Mellun was promoted to the position of Head, House- keeper as a result of a competition. The position's Schedule was changed from 6 to 4 after the competition and before he I was appointed to to the position. He had not held the posi- tion when it was a Schedule 6 position. He grieved that he .' - - - --~- --, ~-- --~ -- 4, -" . ,- ~ 20 . was entitled to a salary adjustment under J\rt,. 7.6 when the formerly Schedule 6 position became a Schedule 4 position. His grievance was dismissed The employer argued that because Mr. Wernet-Mackeler haQ not been an RT3 in Schedule 6 prior to his transfer to Sche..,. dule 4.7,. he was not entitled to an adjustment under Art 7.6 Arqitrator Barrett stated at p. 7 of Mellun that Art. e 7.'6 "applies to individual employees who while incumbents of a job are transferred from one schedule to another" and "does not and was not intended to raise or lower the pay rates for an entire class~fication on a permanent basis. Pay rates for classifications are bargained separately in the collective bargaining process and it is only individuals who are to re- ceive adjustments pursuant to Art 7.6." The Mellun case turned upon the fact that the grievor had not been a Head Housekeeper under Schedule 6 when the po~ sition's hours were changed to Schedule 4. In commenting upon the application of Art. 7.6, the Mellun board did not consider the situation of an employee who is reassigned under Art. 5.2.1 and as a result of the reassignment is also given an Art. 7 Schedule ~hich increases the number of hours slhe is required to work each week. As a result, with deference to Arbitrator Barrett, this board does not view her interpre- tation of the application of Art 7 6 as determinative of the I. issue before it in this case ~ The Decision: The board has carefully examined each of the cases that the parties submitted in support of their positions. They are of limited assistance The situation of a red-circled employee reassigned to a position requiring more hours per week under an Art. 7 Schedule has not been considered in pre- vious cases before this board. In view of the current econq- mic circumstances and the government's efforts to reorganize ~, -,' ~ 21 to curb expense, the situation before us may recur many times The baard is aware that there are athers in circum~ stances similar to the grievor's whase grievances are "lined up" behind his. The ecanomic consequences to' the emplayer if th~ union's interpretation of the collective agreement~is adopted are- evident. The employer's interpretation of its obligations under the callective agreement is not unreasan- able and cannat be dismissed as based solely upan its desire l to' exeraise fiscal restraint The duty af this baard is to' interpret the parties' in- tentians as to' the grievar's entitleme~t from the literal warding af the callective agreement, provided that in sa daing, nO' absurdity results. The parties expressed their intentians with respect to pyramiding ar duplication in Art. 21.1. Having dane so, the board must conclude that their statement in Art. 21. 1 is "ex- haustive" with respect to' that intentian and that an emplayee may receive twO' ar mere benefits previded that they fall aut- ~ side the descriptions within Art. 21.1 TO' the extent that such benefits may appear t.o be a "windfall", it must be can- eluded fram the words and structure of the agreement and the absence of a mare general provision prohibiting the receipt ( of bath the benefits under Art. Sand 7 6 that the parties intended such a result. From~our examinatien of the underlying purposes of the benefits provided in Arts 5 anq 7, the beard cancludes that they are neither "-premium paYlJlents" nor are they duplicatians af payments for the same purpose Benefit~ falling outside the descriptiens within Art. 21.1, and which are directed to' different purpases, to' the extent that mare than ene is pay- (' able arising from the same circumstances, can properly be described as "multiple benefits": Brawn & Beatty, Canadian Labaur Arbitratian, 3rd ed., (TarantO': Canada Law Beek, 1994), 8-79. The baard cancludes that the benefits in Art. 5 2.1 and 7.6 are multiple benefits . - I ~ ~ I 22 r ~ No issue of pyramiding or duplication arises f:r;:-om the payment of both the grievor's red-circled weekly salary and a salary adju~tmeht under Art. 7'.6 to reflect the increase in his hours, precisely because each payment is intended to c6m~ pensate for different aspects 'of his reassignment 'to a diffe- rent classification, i e the lower salary and the increase . in hours. The parties provide~ for each of the~e benefits i.n different articles. 'J;'he:r:e is nothing on the~ace of the col-i- . i lect1ve;agreement, read, literally and as a whole, that causes the board to conclude that Arts '5.2.1 and 7.6 do not confer separate benefits, or that the grievor is notentitlep to I both of them. The board concludes that the grievor's circum- I stances" in Arbitrator Adams I phrasing, "triggered" two sepa- \ rate provisions of tbe collective agreement which conferred two separate benefits. The ,grievance therefore succeeds In view of the result, it is not necessary to address r the arguments regarding estoppel. However, the board has one reservation it w~shes to ex~ press. Art. 7.3 provides t~at the normal hours of work fqr Schedule 6 employees are a minimum of 36 1/4 hours a week. '- TlJ,ese employees may be required to work more than 36 1/4 hqurs a week and are not entitled to additional compensatio~ for them or to overtime rates, unless assigned to f!refight- ing or related duties (Art. 13.7.2). ~o evideQce regarding ,- the grievor's actual. hours prior to the reassignmeht was I and it was not in dispute on the eviden~e before presented, us that he has been working 3 3/4 hours more per week i1,1 his reassigned RT 3 position than he had been working as an RTS l. Had it -been established that the grievor had w(:>rked 40 or more hours per week on average over his past 2 to 3 years as an RTS 1, he would not have been entitled to a salary adjust- ment for an additional 3 3/4 hours per week at his red- circled hourly rate, because the purpose underlying the bene- fit and entitling him to it, i e. an actual increase in the number of hours worked, would, not have been present . - ~ ~ - .- -- --.- -- - .~ .. . ~ 2'3 p The board will remain seised in the event that the par- ties are unable to agree with respect to the implementation of t.his award. j Dated at Toronto this 5th day of Dece.mber, 1994. i , ( - '-.. 1'1 Dissent"Disgent Attached '0 Michael Milich Employer Nominee d/4 --- - Ed Seymour Union,Nominee \ ;' . - - ----- ----~ .0 -- ~-- INVESTMENT ~~R~NI~G C '9~5 L73 9....6G f"' IQ":; ..ti . . Dissent In the Matter Between ~ OPSEU (Wemer..Mackeler) and The Crown In Right of Ontario (Ministry 'of Natural Resources) GSB File 2151/93 It is with some regret that I cannot Join in the majority decision in this case because there is much with which J do agree. \ It is solely with respect to the application of Articles 5.2.1 anq 76 where I must part company with my colleagues I agree thafthere is no issue of pyramiding in the applicatiOn of the two provisions Both can apply under the appropriate circumstances. However, the issue may beattogether moot if I am correct in my analysis of the application of the two ArtiCles It is my firm belief that the interplay between the saJary protection provisions of Article 5 and the reQuirement to adju~t an employee's weekly salary proportionately to the hours worked under Article 7 6 was definitively determined by ArbitratorSamuets in bee 103/85 To restrict_ ~~. solely to cases where the hours of work of a red-circJed ,employee are reduCed is far too narrow a reading of the decision and its' undertying assumptions establishes abQut both articles Arbcle 7 6 states. "Where the employer intends to transfer employees or an emp/()yee from one schedule to another schedule. the employer will discuss the transfer with the Union prior to such a transfer When the transfer occurs the employee's weekly salary based on his basic hourly rate f' shall be adjusted accordingly I' . -...,..",. .' . . ~. ...~..--.- --- ".,.~. -....- , .:., .,"~;<- --. "~---"':'-'--- '._,' --' '.~- - r I -'- INVESTMENT PLANNING C 905 273 92€.a P 03 , .t._..,-; '1 . I .. The article clearly balances"the interests of the employer and the employee where a change in Schedule affects the employee's hours of work It serves the employer's interests with a decrease in weekly salary when there is a reduction in an employee's hours of work. The employee's interests are .served Y.Jith an increase in weekly salary when the hours of work are lengthened The formula is simple and straight forward operatIng on the employee's "basic hourly rate" and normal ~kiy hours of work. There is no dispute bet\Neen the parties that the grievor's assignment was appropriate under Article 5.2.1 It is generally accepted that the income protection provided under the r-~: Article 5,52 1 in the case before us and 5 5 1 (now 5 4 1) in.~ is for the employee's weekly salary In hiS decision in Halev 438/85, Arbitrator Spnngate reinforced this interpretation, of usalary" in the article when he found that Article 5.2.2 (now 5 1.2) also ensured that a promoted employee received a financfsl reward and, therefore, "salary" could only be interpreted as weekly salary The deci&lOn in Lee was prominent in his decision As fang as Article 5.2 1 and Article 7 6 operate independently, there is no, for want of a better term, conflict bet\Neen the proviSions and their underlying purposes It is only when the wage protection provIded under ArtiQle 5 2.1 in this case and 55 '1 (now 5 4 1) in Lee coincide with a changmg of the Schedule affecting the hours of work which triggers the adjustment required under Article 7 6 that an apparent conflict of purposes occurs lee, I submit, resolved that conflict hi favour of the primacy of the income protection provisions of Article 5 lee.!. in effect, nullified the application of Article 7 6 where, the weekly salary was protected under Article 5 5 1 (nO\N 5 4 1) The fact that in !-ee the griever was a red- circled employee faced with a shorter work week, while, In the case before us, the red-circled employee is going to a longer work week does not override the fundamental decision made in Lee That decision, simply put, found tha~, once an employeets weekly salary was protected under Article 5 5 1 (now 54 1), it could not be broken , ( t'~ INVESTMENT PL~NNI~~ t ~1215 273 926121 P 04 ~ ~ ~ /' , down into its, component parts of basic hourly rate and hours of work to accommodate Artide 7 6 , '\ It should be remembered that in Lee theempl6yer had argued that it was the basic hourly rate Which was ,pr()tected under Arbcl~ ,5 5 1 (now , '5 4 1) not the weekly salary of theempfoyee. If It was the the baSIC hourly rate which 'I/as protect~d under article 5 5 1 (5 4 1) Article 7 6 w.ould operate without \mpedimentRegard~ess of whether the hours _ of work were increased or reduced, the weekly salary of the red-circled employee would be adjusted in accord~nce with the article by applying the protected basic hourly rate to the hour& of work for the employee However this mutual operation cannot 'Occur when the weekly salary is protected Under the decision, in,L,ee the weekly salary.ls frozen for the purposes of Article 7 6 r submit that we cannot now say that, in icircumstances where the red- circled empfoyee1s hours of work are increased, the Weekly salary can be broken down into its component parts itO Increase the weekly salary of the employee To do so, effectively undermines the fundamental principie behind the decision in Lee that the protected weekly salary cannot be broken down into its component parts for the purposes of Article 76 If the protection of the weekly salary did not have this I ,I effect, Article 7 6 would have applied in~ea and the griever's weekly rate of, pay woutd haVe decreased proportionately to the hours worked The effect of the majority decision in the case before us is to admit that the weekly salary can be broken down into its component parts and that it IS actually the basichourty'ratewhich is protected. It can mean nothing else since it is only when the basic hourly rate is protected that Article 7 6 can operate 'freely ,A further result of this appproach is to effectivety provide the grievor with protection for the ./ higher adjusted weekly salary This resUlt flies in the face of Articles 5 2 1 and 5 4, 1 which protect the weekfysalary the employee was receiving before the changes which triggered the application of the articles occurred The basic concept of income protection under the provisions .of Article '5 is to prevent an immediate decHne in employee 5 weekly sa.Jary not to provide the employee with an increase in wages. , - - . -- - - I NVESTMEtlT= PL:ANN I NG C 985 273 9268 P€t5 ex -~ '" " '~ r; . We 8$ ,a board must a,s I understand the process, interpret the ) provisions of the agreement whIch come before us in a manner which is consIstent with the collective agreement as a whole Using the ap'proach established by Lee in this case would maintain that consistency in the interplay between Article 5 and Article 7 6 . I further submit that to achieve that consistency thebalancI09 of interests e.stabltshed by Article 76 must be preserved and, thereby, give meahing to the Article under these circumstances The balance is retamed .If the weekly salary of a red-circled employee IS alsQ left unadjusted under ArtIcle 7 e when the hours of work are increased by a change in Schedule The red-circled employee suffers no reduction ;n weekly salary as a result of a decrease in hours and the employer is not penalized by an increase in wages due to an increase in hours of work In the latter instance, the employee still maintains a higher weekly Isal~ry instead of the one for the lower classification to which the emloyee had been assigned To proceed as the majority decision has done destroys the balancing of interests that is established by Article 7 6 We shoulQ not, nor does the agreement, I submit permit us to say that in one case involving these articles Article 7 6 has no meaning while in another it does. The comments of Arbitrator Dissanayake InWauah 1661191 on the necessity of the parties to live with the results of their agreements is equally applicable- to the decisions of the Board'i On page 11. the arbitrator states A, "In this particular case the grievor benefitted We do not find the result to be offensive as the employer appears to Compromises of employee's and employers rights IS a necessary and inevitable by- product of the resolution of a complex situation " He goes on to say a little later on the same page "We have no jurisdiction to in effect amend item (c) as it applies to this parlicu/ar grievor because of the apparent" windfall, anymore than we would have jurisdiction to do so in a situation where an employee "- complains that his full entitlement had been compromised by the terms . - ~ I, " ~ t' agreed to That Is the agreelnent entered to and the parties must live 'with the results. n Other panels of the Grievance Settlement Board have determined that it is the weekly salary which is protected under the income protection provisisons of Article 5 Lee took that interpretation to its logical conclusion when it decided that the protect~d weekly salary was immune from the operation of Article 7 6 We, as another panel of this Board, cannot now say that that is not the casein these specific circumstances because we do not like the result. At the very least, we cannot do SO without disturbing the whole basis upon which the previous decIsions were made Either Lee is wrong or the decIsion in [ this case is. Finally, the position in the gnevance before this panel had been assigned to Schedule 6 While I realize that there IS a line of decisions " of this Board whiCh have adopted the position that a basic hourly rate for employees assigned to Schedule 6 can be determined by considering the actual hours that the employee works, I feel that those decisions have missed the intention of Schedule 6 My understanding of Schedule 6 is that the employee works the I number of hours it takes to do the job The definition of Schedule 6 in I the PubHc Service Act states that the hours of work shall "vary in accordance with the requirements of the classification It As in Article 7 of the Collective Agreement 36 1/4 hours is only a minimum There is no maximum While the approach of the Board may be a practical approach to those situations where a Schedule 6 employee works what amounts to regular hours, it does not take into account that .the same position may at different times require more or less hours of work for extended periods depending on the requirements placed on the position In such circumstances, it cannot be said that a b~sic hourly rate can be determined Regardless of the current circumstances of a position assigned to the Schedule, the potential for the fluctuation in the hours of work remains real /1.s such , the schedule cannot be said to have a basic hourly rate with which the weekly salary could be adjusted under Article 7 6 ) I - /, ~' ( (' ~' t-' " I, I . The qualitative difference between Schedule 6 and the other ~ SchedL!les In Article 7 is further illustrated by the language of the definitions found in the article Both the weekly and daily hour$ of work are defined in Schedules 3 and 3 7 as 36 1/4 hours a week and 7 1/4 hours a day, while Schedules 4 and 4 7 require 40 hours per week and 8 hours per day This approach is extremely conducive to the calculation of a basic hourly rate This type of definition is absent from the definition of Schedule 6 tn, the agreement and statu.Je For these reasonS'1 I would have dismissed the ,grievance An of which is respectfully submitted ,)thJ/J.1~~. Michael Milich ( I { 1 I .J I ( , _ c