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HomeMy WebLinkAbout1995-1004.Yole et al.02-08-23 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1004/95 1724/96 1754/96 0486/98 UNION#95F005 96A422, 96A452, 98A528 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Yole et al) Grievor -and- The Crown III RIght of Ontano (Mimstry of the SOlICItor General and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Ed Holmes Counsel Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Andrea KupreJ anov Staff RelatIOns Officer Mimstry of the SOlICItor General HEARING June 28 July 25 & 26 2001 TELECONFERENCE January 18 2002 2 DECISION On June 2, 1995, twenty-eIght correctIOnal officers at the MIllbrook CorrectIOnal Centre filed a gnevance that stated We gneve that the employer IS m vIOlatIOn of ArtIcle 3 3 1 and 3 3.2 and as a result we are bemg paid mcorrectly The requested redress was To be paid at the appropnate CorrectIOnal Officer 2 level retroactIvely from the date that we mdIvIdually quahfied for tlus rate of pay, wIth the proper progressIOn through the salary range and mterest for all money owed. At the begmnmg of the heanngs mto tlus matter the partIes agreed to consohdate other snnIlar gnevances before me Those gnevances were filed by WIlham Yole from Maplehurst, Mr CVItkoVICh from London and a group gnevance sIgned by Mr Skuce The pohcy gnevance filed by Mr CVItkoVICh stated. We gneve that we have not receIved wages at the rate of the eqUIvalent wages at the rate of eqUIvalent cIvIl servIce classIficatIOn as per artIcle 31 2 1 of the collectIve agreement We want the eqUIvalent wage wIth all benefits owed and full progressIOn through the salary range at the eqUIvalent rate from our start dates to the tnne of settlement The relevant prOVISIOn m the collectIve agreement states The rate of eqUIvalent cIvIl servIce classIficatIOn shall apply If there IS no eqUIvalent classIficatIOn, the rate shall be set by the mmIstry mvolved and the Umon shall have the nght to negotIate the rate dunng the appropnate salary negotIatIOns 3 All of the gnevors held the posItIOn of unclassIfied CorrectIOnal Officer 1 (CO!) It was the Umon's posItIOn that the gnevors should be paid at the CorrectIOnal Officer 2 wage rate because they were perfonnmg the full range of dutIes of the CorrectIOnal 2 classIficatIOn The Employer dId not dIspute the claim that the gnevors were perfonnmg the full range of dutIes of the C02 posItIOn In the Employer's wntten submIssIOn It was stated. In fact, the Employer acknowledges that the maJonty of unclassIfied correctIonal officers m the MmIstry of CorrectIOnal ServIces ("MmIstry") who had completed the reqUIred trammg were perfonnmg the dutIes of the C02 classIficatIOn The partIes are not m dIspute that, at the tune the gnevances were filed, the MmIstry had m place an Underfill Removal Pohcy that regarded the C01 classIficatIOn as the underfill appomtment and the C02 classIficatIOn the full workmg level, as described m the class standards of the correctIOnal officer senes In accordance wIth the Underfill Removal Pohcy, unclassIfied correctIOnal officers dId not progress to the CO2 classIficatIOn, because the mandatory reqUIrements for underfill removal were appomtment to the classIfied servIce, and one year of full-tIme classIfied serVIce Therefore, at the tune that the gnevances were filed, all unclassIfied correctIOnal officers employed by the MmIstry were at the CO 1 classIficatIOn F or the purposes of clarIty, It IS noted that an underfill assIgnment IS defined m the Manual of AdmmIstratIOn as one that "occurs where a person, lackmg the full quahficatIOns for a posItIOn IS not reqUIred to perfonn the full range and/or level of dutIes of the posItIOn, and IS paid at a classIficatIOn level lower than that estabhshed for the posItIOn" At the commencement of the proceedmgs the Employer raised two prelunmary ObjectIOns but agreed to argue both at the conclusIOn of the eVIdence The first ObjectIOn was that the gnevances must be found to be marbItrable because, at theIr core, they are classIficatIOn gnevances and 4 therefore, beyond the scope of tlus Board The Employer also took the posItIOn that the gnevances were dIsposed of as the result of a Memorandum of Agreement sIgned by the partIes on August 26, 1998 and are therefore, marbItrable The UnIon dIsagreed that the August 26, 1998 Memorandum of Agreement touched upon the matters at hand m any way However, the UnIon submItted that the language of the Agreement was unclear and ambIguous and extnnsIC eVIdence would be needed to detennme tlus matter The Employer was of the VIew that the Memorandum of Agreement was clear and unambIguous and was of no assIstance to the UnIon I reserved my ruhng m tlus regard and eVIdence was called by both partIes regardmg dIscussIOns held dunng the negotIatIOns toward the resolutIOn of vanous gnevances EMPLOYER SUBMISSIONS Ms KupreJanov, for the Employer, submItted that the gnevances at Issue are clearly classIficatIOn matters and, accordmg to the Crown Employees Collectlve Bargaznzng Act, Part IV, SectIOn 52 are marbItrable That sectIOn states ClassIficatIOn Issues - a provIsIOn m an agreement entered mto that provIdes for the detennmatIOn by an arbItrator, a board of arbItratIOn or another tnbunal of any of the followmg matters IS VOId 1 A classIficatIOn system of employees, mcludmg creatmg a new classIficatIOn system or amendmg an eXIstmg classIficatIOn system 2 The classIficatIOn of an employee, mcludmg changmg an employee's classIficatIOn 5 Furthermore, the UnIon IS contractuall y barred from pursmg these gnevances because of the moratonum on classIficatIOn gnevances the partIes agreed to found at SectIOn 10 5 of AppendIx 7 of the collectIve agreement that expIred on December 31, 1998 The Employer argued that m order to detennme whether these gnevances are actually classIficatIOn matters It IS necessary to consIder vanous definItIOns and descnptIOns of "classIficatIOn" as that tenn IS utIhzed by these partIes In the 1991 ClassIficatIOn and PosItIOn AdmmIstratIOn DIrectIve the followmg IS stated. The classIficatIOn process detennmes what a posItIOn m the Ontano Pubhc ServIce IS to be paid. ClassIficatIOn systems enable the employer to assess the relatIve worth of posItIOns and pay mcumbents accordmgly ClassIficatIOn standards estabhsh yardstIcks agamst whIch posItIOns are compared, aVOIdmg the need for tune-consummg Job-to-Job comparIsons ClassIficatIOn begms when management creates posItIOns as It organIzes work The posItIOn dutIes and responsIbIhtIes are detennmed, compared to tYPIcal class standard levels and then assIgned appropnately A salary range automatIcally apphes to each class level A reVIew of the schedule of classIficatIOns that apply to all bargammg UnIt employees mdIcates that each classIficatIOn IS made up of the classIficatIOn tItle, the classIficatIOn code and the salary range It IS eVIdent, the Employer suggested, that a wage rate IS not a separate Item that can be taken from one classIficatIOn and apphed to another because It IS an mtegral part of each classIficatIOn In the mstant matter, the gnevors are askmg to be paid at the C02 rate wlule retammg the classIficatIOn tItle of CO 1 Wlule some of the gnevors have, on the face of theIr gnevances, referred to tlus as an 6 eqUIvalency matter, It IS clear that the real request IS to have a detennmatIOn made as to appropnate classIficatIOn whIch IS beyond the scope of the JunsdIctIOn of thIS Board. In thIS regard the Employer rehed upon Re OPSEU (AItken et all and the Ministry of Health, GSB #678/87 (Gorsky), Re OPSEU and the Ministry of the Environment, GST #725/00 (Abramsky), Re OPSEU (Courte/MacGregor et all and the Ministry of the SolicItor General, GSB # 1946/93 (Roberts), Re OPSEU (Theoret) and the Ministry of Fmance, GSB #1674/93 (Roberts) Ms KupreJanov submItted that the only classIficatIOn matters over whIch the Board can take JunsdIctIOn are cases that allege dIscnmmatIOn under the Human Rlghts Code There IS no such allegatIOn m the mstant gnevance nor IS there an allegatIOn that the gnevors were treated m an arbItrary manner Indeed, the gnevors have all been dealt wIth fairly and m accordance wIth the Underfill Removal Pohcy ThIS pohcy has been the subJect of a number of Gnevance Settlement Board decIsIOns In thIS regard the Employer rehed upon Re OPSEU (Bishop et all and the Ministry of the CorrectIOnal Services, GSB #1432/88 (FIsher), Re OPSEU (Moore et all and the Ministry of CorrectIOnal Services, GSB #595/92 (Roberts), and Re OPSEU (Knaap) and the Ministry of the SolicItor General, GSB#3164 (DIssanayake) In these decIsIOns each of the VIce Chairs detennmed that the matter before them was a classIficatIOn matter and therefore marbItrable The Employer asserted that, m the past the UnIon has charactenzed sunIlar gnevances that alleged a vIOlatIOn of artIcle 331 as classIfi catIOn gnevances Pursuant to the Soczal Contract Act, the partIes entered mto a 7 Memorandum of Understandmg wherem the UnIon agreed to wIthdraw all outstandmg clasSIficatIOn gnevances filed pnor to August 1, 1993 m exchange for an allocatIOn of a lump sum of twenty mIlhons dollars whIch was for the purpose of compensatmg employees whose gnevances were wIthdrawn Included m the hst of wIthdrawn gnevances were some that alleged a vIOlatIOn of artIcle 3 3 1 The UnIon was unable to offer any eVIdence or explanatIOn regardmg tlus hIStOry dunng the course of the heanng Indeed, the eVIdence before tlus Board mcluded a letter to the Gnevance Settlement Board dated May 25, 1995 from the UnIon hstmg gnevances that "should be dIsregarded" because they are "are to be taken up by the Social Contract Forum" Included m that hst were SIX gnevances allegmg a vIOlatIOn of ArtIcle 3 3 1 AddItIonally there was eVIdence of a report from the MmIstry of the SohcItor General and CorrectIOnal ServIces dated March 22, 1995 that hsted gnevances paid out from the twenty mIlhon dollar fund Agam, mcluded were gnevances allegmg vIOlatIOns of ArtIcle 3 3 1 It IS clear that the mutual understandmg of the partIes that gnevances such as the mstant matters are properly charactenzed as classIficatIOn matters and not wage eqUIvalency gnevances The UnIon IS now attemptmg to resIle from ItS agreement Ms KupreJanov contended that It IS helpful to utIhze one of the rules of mterpretatIOn, that IS, that where there IS a chOIce of two hngUIstIcally pennIssible mterpretatIOns, reasonableness should prevail Once that rule IS apphed It IS eVIdent that the most reasonable mterpretatIOn of the gnevances IS that they are classIficatIOn matters 8 The Employer's second prelunmary obJectIOn was that the gnevances were prevIOusly resolved. On August 26, 1998 the partIes sIgned a Memorandum of Settlement and Release regardmg the converSIOn of unclassIfied posItIOns to classIfied posItIOns At paragraph SIX It was stated. In recognItIOn of the fact that unclassIfied CorrectIOnal Officers receIve the eqUIvalent basIc trammg as classIfied CorrectIOnal Officers, eXIstmg unclassIfied CorrectIOnal officers who have worked at least 1912 hours as a CorrectIOnal Officer wIll be reclassIfied from CO 1 to C02 effectIve the sIgnmg of tlus Memorandum of Settlement m accordance wIth the prmcIples of ArtIcle 7 (Pay AdmmIstratIOn) of the collectIve Agreement NotwIthstandmg that tlus Memorandum of Settlement IS wIthout preJudIce or precedent, the partIes agree that the above paragraph can be rehed upon at the Gnevance Settlement Board as bemg wIth preJudIce for the purpose of detennmmg only those prevIOusly filed gnevances pertammg to the dIfference between CO 1 and C02 pay levels of unclassIfied CorrectIOnal Officers who have completed the reqUIred trammg There was no dIspute between the partIes that paragraph 6 could be rehed upon by the partIes m tlus heanng The Issue was what paragraph 6 meant It was the Employer's submIssIOn that the matters at hand were resolved because, m accordance wIth the Memorandum of Settlement the gnevors were reclassIfied from C01 to C02 on August 26, 1998 The UnIon agreed that the gnevors were reclassIfied but dId not agree that tlus fact resolved the gnevances at Issue In the Employer's VIew, the dIspute then becomes whether paragraph 6 has retroactIve apphcatIOn beyond August 26, 1998 and, m ItS vIew, It does not The UnIon forfeIted ItS nght to pursue any remedIes that would allow for a retroactIve remedy that predated August 26, 1998 It was the Employer's VIew that the effectIve date for the complete remedy agreed upon m the Memorandum of Settlement was expressly stated 9 as August 26, 1998 The UnIon IS attemptmg to have tlus Board read mto paragraph 6 that "the partIes agree that the above paragraph, except for the effectIve date stated therem, can be " It was contended that vanous canons of constructIOn are of assIstance m detennmmg tlus dIspute The five suggested by the Employer were . Words should be gIven theIr ordmary meanmg, . Each word should be gIven some meanIng The nlle agamst redundancy, . Unless specIfically stated, prOVISIOns of a CollectIve Agreement should not be gIven retroactIve effect, . Clauses should not be Imphed mto an agreement, and . The CollectIve Agreement should be read as a whole An apphcatIOn of each of those nlles would lead thIS Board to find that the UnIon cannot now Imply an effectIve date other than August 26, 1998 Further, accordmg to the Employer, the UnIon cannot now ask thIS Board for retroactIvIty when all unclassIfied correctIOnal officers were prospectIvely reclassIfied as of August 26, 1998 If they met the cntena under paragraph 6 It would be unfair to find that paragraph 6 only apphed retroactIvely to a small fractIOn of employees and to not others m the same CIrcumstance It was the Employer's VIew at the tIme that there IS no latent or patent ambIgUIty m paragraph 6 of the Memorandum of Agreement and therefore extnnsIC eVIdence ought not to be admItted. The UnIon had mdIcated that paragraph 6 was ambIguous m two areas The first was the word "reclassIfied" m the phrase "reclassIfied from C01 to C02" and the entIre phrase "m accordance wIth the prmcIples of ArtIcle 7 (Pay AdmmIstratIOn) 10 of the collectIve agreement" The UnIon's VIew was that "reclassIfied" IS ambIguous because It suggests one IS classIfied to begm wIth and tlus clearly IS not the case and the later phrase IS ambIguous because ArtIcle 7 of the collectIve agreement does not apply to unclassIfied employees The Employer submItted that the word "reclassIfied" IS not ambIguous because It IS later clanfied by the phrase "from C01 to C02" That quahficatIOn makes very clear that tlus IS not a converSIOn from unclassIfied to classIfied status but a change m pay from the CO 1 to C02 classIficatIOn Regardmg the suggested ambIgUIty m the phrase "m accordance wIth the prmcIples of ArtIcle 7", the Employer agreed that ArtIcle 7 does not apply to unclassIfied employees However, It IS very Important to reahze that the phrase at Issue does not suggest that It does apply to tlus group of employees It IS sImply a clear statement that the partIes agree to apply those prmcIples that are set out m ArtIcle 7 It was suggested that m tlus context, the word "pnncIples" means the rule or doctnne to be followed. The partIes mtended that reclassIficatIOn from CO 1 to C02 would be treated as a promotIOn There was no eVIdence put forward by the UnIon to suggest otherwIse and therefore tlus Board must find that there IS no latent or patent ambIgUIty found at paragraph 6 of the August 26, 1998 Memorandum of Settlement Accordmgly, the extnnsIC eVIdence heard by the Board cannot be admItted or consIdered m detennmmg tlus matter In tlus regard, the Employer rehed upon Re OPSEU (ConversIOn Grievance) and the Ministry of the Attorney General, GSB #461/96 (Bnggs), Re Ontario Liquor Board Employees UnIOn (Sheridan et all and the Liquor Control Board of Ontario, GSB #2299/93 et al (Bnggs), Re OPSEU (UnIOn Grievance) and the Ministry of TransportatIOn, GSB# 320/98 (Mikus), Re Health 11 Employers AssociatIOn of British ColumbIa and Simon Fraser Lodge and HospItal Employees' UnIOn, (1998), 77 L.A.C (4th) 1 (McPhIlhps), Re Government of the Province of Alberta and Alberta UnIOn of Provmclal Employees (2000), 90 L.A.C (4th) 380 (Pnce) UNION SUBMISSIONS Not surpnsmgly, Mr Holmes, for the UnIon, charactenzed the outstandmg matters as Issues of eqUIvalency, not classIficatIOn or re-classIficatIOn gnevances He noted the fundamental agreement between the partIes that the gnevors perform the full range of dutIes associated wIth the CO2 classIficatIOn and that they had the reqUIsIte year of expenence and/or servIce Therefore, the UnIon has dIscharged ItS onus and unless tlus Board upholds one of the Employer's prelunmary obJectIOns the gnevances must be upheld. The UnIon conceded that classIficatIOn gnevances are marbItrable However, the gnevors are unclassIfied staff and therefore cannot be reclassIfied unless they are moved from the unclassIfied to the classIfied servIce The gnevors do not seek classIfied status They wIll rem am unclassIfied IrrespectIve of the result m thIS matter In thIS regard the UnIon rehed upon Re OPSEU (Greer) and the Ministry of Natural Resources, GSB #877/86 (DIssanayake) The Issue for tlus Board to detennme IS what IS the eqUIvalent cIvIl servIce classIficatIOn and resultmg appropnate rate of pay for these gnevors 12 Mr Holmes asserted that SectIOns 51 and 52 of CECBA have no apphcatIOn m tlus dIspute because the UnIon IS not seekmg a new or altered classIficatIOn system for employees NeIther IS It attemptmg to have tlus Board make a change to any employee's classIficatIOn Fmally, the UnIon IS not requestmg the creatIOn of a new, or an amendment to an eXIstmg, classIficatIOn system Accordmgly, the Act IS not detennmatIve of tlus matter and does not prohibIt a findmg m favour of the gnevors It was the UnIon's contentIOn that an IdentIcal fact sItuatIOn was before the Board m Re OPSEU (Barker et all and the Ministry of the Attorney General, GSB #2476/92 (Kaplan) In that case, as m the mstant matter, the Employer raised a prelunmary obJectIOn regardmg arbItrabIhty because the gnevances were classIficatIOn m nature wlule the UnIon asserted the Issue at hand was one of wage rate of the eqUIvalent cIvIl servIce classIficatIOn VIce Chair Kaplan dIsmIssed the Employer's obJectIOn statmg at page 11 We also find that these gnevances are clearly arbItrable, and that the employer's second obJectIOn must also be dIsmIssed These gnevors are not challengmg theIr classIficatIOn Wllat they are domg IS seekmg the reVIew of theIr compensatIOn, whIch IS detennmed by management selectmg an "eqUIvalent" classIficatIOn ThIS IS the only sense m whIch the gnevances pertam to classIficatIOn, and m no way can they be described as classIficatIOn gnevances of the kmd that frequently come before tlus Board. The gnevors are entItled, under 3 3 1 of the CollectIve Agreement, to be paid the wage rate assIgned to an eqUIvalent classIficatIOn, and that entItlement carnes wIth It a correspondmg entItlement to gneve the comparator classIficatIOn assIgned to them for the detennmatIOn of wages where the allegatIOn IS made that IS It not eqUIvalent The matter of eqUIvalence IS an Issue for the Board to decIde 13 Accordmgly, Mr Holmes submItted, accordmg to the prmcIples set out m Re Amalgamated TransIt UnIOn (Blake et all and Toronto Area TransIt Operating Authority), GSB #1276/87 (ShIme), the Employer's first prelnnmary obJectIOn must be dIsmIssed. All of the Junsprudence put forward by the Employer m tlus matter mvolved a classIfied employee seekmg re-classIficatIOn The mstant matter IS clearly dIstmgUIshable The UnIon submItted that the Saine reasons apply when consIdenng the Employer's argument regardmg the socIal contract moratonum The UnIon denIed that It had prevIOusly charactenzed snnIlar gnevances as classIficatIOn gnevances as asserted by the Employer There was no eVIdence that the gnevances are snnIlar, no eVIdence that the UnIon agreed to forgo claims snnIlar claims m the future, no eVIdence of detnmental rehance by the Employer, and no eVIdence that the prevIOUS agreement was to preclude future gnevances Regardmg the Employer's second obJectIOn that tlus matter has been prevIOusly resolved, the UnIon stated that the Memorandum of Agreement dealt wIth other gnevances Turnmg to the language of the Memorandum of Settlement, there are three latent ambIgUItIes to be found at paragraph SIX The words "wIth preJudIce", "re-classIfied" and "m accordance wIth the prmcIples of ArtIcle 7" result m latent ambIgUItIes The UnIon took no Issue WIth the Employer's VIew of when extnnsIC eVIdence IS admIssIble However, It was the UnIon's submIssIOn that wlule the above mentIOned 14 phrases mIght appear clear on theIr face, each becomes ambIguous m theIr apphcatIOn In the alternatIve, If the words found at paragraph SIX are not ambIguous, the UnIon submItted that ItS mterpretatIOn IS the most reasonable and probable The partIes agreed that one part of the settlement IS preJudIcial Read together, the two paragraphs mean that those gnevors who filed theIr gnevances pnor to August 26, 1998 who have completed trammg and have worked 1912 hours as a correctIOnal officer can rely on those factors when advancmg and estabhslung theIr case for an appropnate wage eqUIvalency That IS to say that where a gnevor meets the stated cntena then wage eqUIvalency IS estabhshed at the C02 classIficatIOn The language IS wntten to hmIt potentIal habIhty for the Employer to those gnevances already filed. Therefore, paragraph SIX IS not about retroactIve apphcatIOn but about protectmg the gnevors' nghts to have theIr gnevances that were filed pnor to the Memorandum of Agreement detennmed. Mr Holmes noted that the only reference m the settlement between the partIes about a non-converSIOn matter IS that of eqUIvalent wage rate wherem the specIfic mdIvIdual gnevance nghts were protected Those are the gnevances at Issue and It IS clear that the partIes agreed they would be adJudIcated EMPLOYER REPLY SUBMISSIONS The Employer submItted that the three GSB decIsIOns rehed upon by the UnIon can be dIstmgUIshed on three bases FIrst, each was determmed and Issued pnor to the Social Contract Memorandum of Agreement Second, 15 they were Issued before the Salary Schedules were negotIated mto the collectIve agreement between the partIes Fmally, because of the statutory changes made to the Crown Employees Collectlve Bargaznzng Act As a result of these events the decIsIOns the UnIon put forward as compellmg are no longer of assIstance because a new contractual and statutory framework eXIsts DECISION I have gIven thIS matter much consIderatIOn Turnmg first to the Issue of arbItrabIhty, I am of the VIew that the Employer's prehmmary obJectIOn m tlus regard must fall VIce Chair Kaplan stated, m Barker et al at page 11 We also find that these gnevances are clearly arbItrable, and that the employer's second obJectIOn must also be dIsmIssed These gnevors are not challengmg theIr classIficatIOn Wllat they are domg IS seekmg the reVIew of theIr compensatIOn, whIch IS determmed by management selectmg an "eqUIvalent" classIficatIOn ThIS IS the only sense m whIch the gnevances pertam to classIficatIOn, and m no way can they be described as classIficatIOn gnevances of the kmd that frequently come before thIS Board. The gnevors are entItled, under ArtIcle 3 3 1 of the collectIve agreement, to be paid the wage rate assIgned to an eqUIvalent classIficatIOn, and that entItlement carrIes WIth It a correspondmg entItlement to gneve the comparator classIficatIOn assIgned to them for the determmatIOn of wages where the allegatIOn IS made that IS not eqUIvalent The matter of eqUIvalence IS an Issue for the Board to decIde ObvIOusly, the gnevors have every nght to file gnevances pertammg to the overtIme prOVISIOn of the collectIve agreement That IS precIsely the case before me These gnevors are not askmg to have theIr classIficatIOn changed or modIfied. They merely gneve that they have not receIved wages at the appropnate rate of eqUIvalent cIvIl servIce 16 claSSIficatIOn I dIsagree wIth the Employer that a findmg of arbItrabIhty contravenes SectIOn 52 of CECBA I aIn not bemg asked to amend a classIficatIOn system, create or amend a new classIficatIOn, classIfy an employee or change an employee's classIficatIOn I am bemg asked to detennme If the wage rate of C02 IS the appropnate cIvIl servIce eqUIvalent for these gnevors Havmg found that the gnevances at Issue are not classIficatIOn matters, the Employer's submIssIOns regardmg the Social Contract have no apphcatIOn The Employer would have me find these matters marbItrable because there was reference m some documents to gnevances that alleged a vIOlatIOn of artIcle 3 1.2 as bemg wIthdrawn at the same tune as classIficatIOn gnevances I must agree wIth the UnIon's contentIOn that I sImply have msufficIent eVIdence to be persuaded by tlus assertIOn In any event, the mclusIOns rehed upon by the Employer cannot lead me to find that the gnevances are actually classIficatIOn matters and therefore marbItrable Indeed, none of the Employer's able submIssIOns convmced me that I should vary from Barker et al or that I should find It no longer apphed. The next Issue to address IS the Employer's second prehmmary obJectIOn concernmg whether thIS matter was resolved by a pnor settlement In thIS regard, It was the UnIon's VIew that certam words and phrases wIthm the Memorandum of Settlement dated August 26, 1998 were latently and patently ambIguous and therefore extnnsIC eVIdence was necessary to assIst m ItS mterpretatIOn I dIsagree In my VIew, the words and phrases referred to by the UnIon are clear and unambIguous Mr Holmes suggested that 17 wlule the words mIght appear clear on theIr face they are ambIguous m theIr apphcatIOn If that were the standard to be apphed, there would always be a findmg of ambIgUIty As I stated m the February 10, 1997 ConversIOn gnevance at page 8 It IS not sufficIent for there to be a dIspute as to the meanIng of the collectIve agreement If thIS was the case, extnnsIc eVIdence would be allowed m vIrtually all cases SpecIfically I find nothmg ambIguous about the phrase "wIth preJudIce", the phrase "reclassIfied from COl to C02" or wIth the phrase "m accordance wIth the prmcIples of ArtIcle 7" I agree wIth the Employer's submIssIOns m thIS regard Therefore, I wIll not consIder the eVIdence proffered by a vanety of wItnesses regardmg the dIscussIOns that took place dunng the negotIatIOn of the August 26, 1998 Memorandum of Agreement In my VIew, the two paragraphs found at #6 m the Memorandum make clear that the partIes agreed that, notwIthstandmg the other prOVISIOns of the Memorandum of Agreement, the mstant gnevances would proceed to htIgatIOn m theIr own nght and would not be resolved by the Memorandum If these sophIstIcated partIes mtended that these gnevances would be resolved by the Memorandum of Agreement, they would have specIfically said so They dId not It IS worth settmg out agam the prOVISIOns of paragraph SIX In recognItIOn of the fact that unclassIfied CorrectIOnal Officers receIve the eqUIvalent basIc trammg as classIfied CorrectIOnal Officers, eXIstmg unclassIfied CorrectIOnal officers who have worked at least 1912 hours as a CorrectIOnal Officer wIll be reclassIfied from CO 1 to C02 effectIve the sIgnmg of thIS Memorandum of Settlement m accordance wIth the prmcIples of ArtIcle 7 (Pay AdmmIstratIOn) of the collectIve Agreement 18 NotwIthstandmg that tlus Memorandum of Settlement IS wIthout preJudIce or precedent, the partIes agree that the above paragraph can be rehed upon at the Gnevance Settlement Board as bemg wIth preJudIce for the purpose of detennmmg only those prevIOusly filed gnevances pertammg to the dIfference between CO 1 and C02 pay levels of unclassIfied CorrectIOnal Officers who have completed the reqUIred trammg The first paragraph at paragraph 6 apphed to all correctIOnal officers prospectIvely, mcludmg the gnevors It IS clear that the partIes agreed to protect the nght to htIgate the matter at hand for those CO 1 s who had filed these gnevances pnor to the sIgnmg of the Memorandum of Settlement The Employer asserted that the UnIon was attemptmg to change the effectIve date of the August 26, 1998 Memorandum of Agreement for the gnevors I dIsagree As stated above, paragraph SIX serves to protect the nghts of those employees who filed theIr gnevances pnor to August 26, 1998 Further, It IS not unfair, as the Employer suggested that as a result of tlus decIsIOn some employees wIll receIve a greater remedy than others There wIll be a dIspanty m remedy because some employees elected to gneve theIr wage eqUIvalency and others chose not to do so It cannot be said that tlus IS an unfair sItuatIOn Indeed, It IS a common labour relatIOns result At the outset of the heanng the Employer agreed that wlule all of the gnevors were classIfied at the CO 1 level, they were perfonnmg the full range of dutIes of the C02 classIficatIOn It was the UnIon's posItIOn that gIven that conceSSIOn, the UnIon has dIscharged ItS onus and barrmg a 19 dIsmIssal of the gnevances on prelunmary grounds, the gnevances must be upheld. I am mchned to agree F or all those reasons, the gnevances are upheld I wIll remam seIzed m the event that there are dIfficultIes unplementmg tlus decIsIOn Dated m Toronto tlus 23rd day of August, 2002 F ehcIty D Bnggs VIce-Chair