HomeMy WebLinkAbout2003-3075.Union.07-06-12 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2003-3075
UNION# 2003-0999-0030
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFOREVice-Chair
Bram Herlich
FOR THE UNION
Gavin Leeb
Barrister and Solicitor
FOR THE EMPLOYER Fateh Salim
Counsel
Ministry of Government Services
HEARING November 16, 2005; May 25, 2006;
January 15, 22 & 26, March 15, 2007.
2
Decision
The grievance, the collective agreement(s) and the bargaining structure
In a grievance dated October 15, 2003 the union claims that unclassified employees in the
Correctional Bargaining Unit are entitled to ?max plus merit? by virtue of Appendix 26 of the
Central Working Conditions and Employee Benefits Collective Agreement (hereinafter referred
to as the ?Central agreement?).
A rudimentary understanding of the structure of the parties? bargaining and resulting
collective agreements is necessary to appreciate the current dispute. The parties? bargaining is
governed by the Crown Employees Collective Bargaining Act, 1993 (?CECBA?)as amended,
which (subject to certain modifications) incorporates the terms of the Labour Relations Act,
1995.CECBAcontinued the bargaining rights of the Ontario Public Service Employees? Union
(?OPSEU? or the ?union?) in respect of six pre-existing bargaining units. The parties have
subsequently agreed to merge five of those into a single unit. Thus, OPSEU now represents
employees in 2 bargaining units, commonly referred to as the Correctional bargaining unit and
the Unified bargaining unit (the latter being the amalgamation of five formerly separate units).
Each of these units includes both classified and unclassified employees with both common and
varying terms and conditions of employment.
Just as the bargaining unit structure flows from the legislative scheme and the practice
and agreements of the parties, so too does the parties? bargaining structure.
The 2 bargaining units in question are ?designated bargaining units? within the meaning
of section 22 of CECBA. Section 25 (1) of CECBA also requires that there be ?one collective
agreement? (this is the Central agreement referred to earlier) to govern the following terms and
conditions of employment for employees in these units:
1. Dispute Resolution procedures.
2. Prohibitions against discrimination.
3. Employment security and mobility.
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4. Pensions
5. Long-term disability plans.
6. Benefits to which all employees in the designated bargaining units are entitled.
If the parties are unable to agree as to whether an item falls within #6 above, then it is to
be negotiated at the Central table. CECBA also permits the parties, on their mutual consent, to
add wages or any other matters to the Central agreement.
The designated bargaining units are deemed to be a single bargaining unit for the
purposes of the Central agreement and (by contrast to their ability to have merged 5 formerly
separate bargaining units into a single one) the parties cannot alter the description of the deemed
(i.e. the Central) bargaining unit.
For those matters not the subject of Central bargaining, CECBA authorizes the employer
and OPSEU to enter into separate collective agreements for each of the designated bargaining
units.
Thus, (and perhaps notwithstanding comments in my earlier decision in this matter), it
appears that there may be 3 bargaining units and 3 collective agreements in relation to OPS
employees represented by OPSEU:
1. The Correctional employees (CECBA ?designated?) bargaining unit governed by the
terms of its specific agreement. (Provisions of this agreement employ the prefix
?COR? in advance of all article numbers and I may refer to employees in this unit as
?COR employees?.);
2. The Unified employees (CECBA ?designated?) bargaining unit governed by the terms
of its specific agreement. (Provisions of this agreement employ the prefix ?UN? in
advance of all article numbers and I may refer to employees in this unit as ?UN
employees?.); and
3. The (CECBA ?deemed?) Central bargaining unit (which includes employees in both
of the above bargaining units) and the resulting agreement addressing those terms and
conditions of employment required and permitted by CECBA to be included in the
Central agreement.
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Whether the deemed bargaining unit and resulting agreement are ?full-fledged?, i.e.
whether there is a total of 2 or 3 bargaining units/collective agreements was not a question the
parties addressed in any depth. (For example, they expressed no concerns about how to
reconcile a combined legislative/consensual structure of 3 bargaining units/collective agreements
with section 55 of the Labour Relations Act which permits there to be only a single collective
agreement between a trade union and employer with respect to the employees in a bargaining
unit.) It is unnecessary for me, for the purposes of the instant decision, to determine the precise
nature of the bargaining units/collective agreements configuration.
There was, however, no dispute between the parties that bargaining was conducted at
three separate tables: Central, UN and COR. And while the parties were the same at each of
these tables, the individuals representing them were not.
This structural background, however tentatively sketched, is important because, in large
measure, the issue in the case before me is tied not so much to what(one of)the collective
agreement(s) says as to whereit says it.
The grievance, filed under the terms of the Central collective agreement negotiated
during a protracted strike which ended in the spring of 2002, claims that unclassified COR
employees are entitled to a newly established benefit commonly referred to as ?max plus merit?.
A complete description of that benefit is found in UN 16.2. UN 16.2.1 provides:
Effective January 1, 2002, an employee who is at the maximum of the
salary range for his or her classification shall be eligible for an increase to his or
her rate of pay of 1 percent (1%) over the maximum rate of the classification.
Such increase shall be based on satisfactory performance. For employees who
have been at the maximum of the range for twelve (12) months or more on
January 1, 2002, the increase shall be effective upon January 1, 2002. For
employees who have been at the maximum of the range for less than twelve (12)
months on January 1, 2002, the increase shall be effective twelve (12) months
after the employee achieves the maximum of the range.
Articles UN 16.2.2 and UN 16.2.3 provide for further similar increases to be effective
January 1, 2003 and January 1, 2004.
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There is no analogous provision to be found in the COR agreement. However, Appendix
26 to the Central agreement is in the form of a letter from the Employer?s Director, Corporate
Labour Relations to the Union President, the text of which reads as follows:
This will confirm our understanding reached during negotiations that
where an unclassified employee progresses to the maximum rate of a
classification, the employee will be eligible for the additional amounts specified
in the new article 16.2 contained in the Unified collective agreement.
It is on the basis of this latter provision that the Union asserts the entitlement of
unclassified COR unit employees to max plus merit.
It should be readily apparent why the location of Appendix 26 ? its placement ? may be
more significant than its content. Had Appendix 26 been appended to the UN collective
agreement (a location which may well have been more consistent with the employer?s intention
in drafting and tabling the letter) rather than to the Central collective agreement, there would
simply be no issue of the appendix generating any entitlement whatsoever for any employees
other than those in the UN bargaining unit.
However, because it is appended to the Central agreement (which the parties generally
agree can have application to both UN and COR employees), the union seizes on the letter as a
source of entitlement to max plus merit for unclassified COR employees. It is, of course,
important to re-emphasize that the letter is the sole possible source of entitlement to max plus
merit for unclassified COR employees. Entitlement to max plus merit for UN employees is found
in UN 16.2; there is no equivalent article in the COR agreement.
Similar observations pertain to the collective agreements? treatment of wages. Wages are
dealt with in UN 16 and COR 16 respectively. Initially, both provisions are identical: they set out
identical scheduled wage increases and provide that the ?salary rates for all classifications are
contained in the Salary Schedule attached?. However, the UN agreement goes on (in UN16.2) to
provide for max plus merit; the COR agreement does not. The COR agreement, however,
6
contains COR 16.1 (c) which provides for an additional step on the grid ? 5% above the prior
highest grid steps; the UN agreement contains no such provision.
Both the UN and COR agreements include the contemplated Salary Schedules. The UN
salary schedule comprises some 100 pages of listed classifications and corresponding wage rate
tables. For comparative purposes it is useful to set out a portion of the headings and the first such
entry:
The following classifications apply to employees with an appointment status of
classified and unclassified:
Max
plus
merit
04140 ACCIDENT CLAIMS SUPERVISOR 1
01/01/02 793.35 818.44 843.53 870.21 898.40 907.38
01/01/03 812.79 838.49 864.20 891.53 920.41 938.82
01/01/04 833.11 859.45 885.81 913.82 943.42 971.72
By contrast the COR Salary Schedule is just slightly more than 4 pages of classifications
and corresponding wages rate tables. It includes the same preamble regarding application to both
classified and unclassified. The following is an example from the schedule to indicate the form
of its contents:
50563 CORRECTIONAL OFFICER 2
01/01/02 20.22 21.84 23.10 24.26
01/01/03 20.72 22.38 23.67 24.85
01/01/04 21.24 22.94 24.26 25.47
(I have not reproduced the Salary Schedules references to hours of work)
The COR schedule contains no column headed ?max plus merit? incorporating
percentage increases equivalent to those provided by UN 16.2. It does, however, contain an
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additional grid step (as compared to its predecessor schedule) in every classification, providing a
5% increase over the prior maximum.
The evidence called in this matter related virtually exclusively to various accounts of the
negotiations which resulted in the collective agreement provisions now under consideration. The
union argued that the relevant collective agreement language was clear and unambiguous and
that extrinsic evidence was therefore neither required nor permitted. The employer agreed that
the matter might be disposed of by reference only to the provisions of the collective agreement,
although it asserted that would lead to a result contrary to the one advocated by the union. The
employer argued, however, that if there were any ambiguity associated with the interpretation of
the relevant collective agreement language, recourse to the parties? negotiating history would
support the employer?s interpretive position (or, alternatively, such evidence might serve to
establish that the union was estopped from advancing its claim). The union asserted that the
extrinsic evidence would not support the employer?s interpretive position nor form the basis of
any estoppel.
In the circumstances, however, while the union reserved its right to argue that the
employer?s evidence of negotiating history was inadmissible, it did not object to the Board
receiving that evidence. Indeed, the union called some of its own evidence on the point.
Negotiating history
As indicated earlier, bargaining was conducted at three separate tables: Central, Unified
and Corrections. We shall see, however, that the boundaries between these tables, at least in one
respect relevant to the present inquiry, were not always crystal clear or obvious.
We heard the evidence of 4 witnesses who trained our attention on the Central and the
COR bargaining tables. With respect to proceedings at the COR table, we heard from Tammy
Browes-Bugden, the employer?s team leader, chief representative and spokesperson at the
Corrections table. We also heard from James Mask, her second in command of the employer?s 8-
person Corrections bargaining team. Their evidence was supported by various documents
including copious and comprehensive bargaining notes from multiple sources detailing full
8
bargaining meetings, some of the ?2x2? meetings (i.e. meetings involving only 2 individuals
from each bargaining committee), as well as some communications with the mediator. There was
no direct evidence from the union as to the proceedings at the Corrections table; no one from the
union?s Corrections bargaining team testified.
As far as events at the Central table, we heard from Janice Bartley and Andy Todd. Ms.
Bartley was the chief government representative in the negotiations. (The employer had also
retained outside counsel to act as its chief spokesperson in the negotiations.) Ms. Bartley
participated in the negotiations at the Central table, but also (although not participating directly)
oversaw the negotiations at the other two OPSEU tables. Andy Todd performed a similar
function for OPSEU, participating at the Central table but overseeing and having chief
responsibility for the negotiations at all 3 tables.
By and large, there was little factualdispute between the parties as to proceedings at the
various negotiating tables. That did not, however, prevent a certain amount of jousting between
counsel and witnesses under cross-examination ? the latter determined to convince as to the
accuracy of their preferred characterization of the facts. Mr. Todd, in particular, whose
professional skills have clearly not been dulled over almost five years of retirement,
demonstrated his continuing ability to negotiate his way through or, if need be, around some of
the difficult questions put to him.
A review of some of the significant bargaining events for our purposes can begin on
February 14, 2002 when, at the Central table, the employer proposed an item headed ?Pay for
Performance? under which it proposed ?to add a pool of money equal to .5% of payroll available
to those at the maximum step based on a ?re-earnable lump sum? pay for performance scheme.?
On the same day, it tabled 2 separate, but identical, wage proposals at each of the COR and UN
tables.
In a subsequent proposal, tabled on March 10, 2002, the employer increased its offer
from a pool of .5% of payroll to 1.0% of payroll and proposed specific language it described as
New Article 7 X to be incorporated into Article 7 of the Central agreement, ?Pay
Administration?. (Leaping momentarily over the entire course of the negotiations, that very
9
language is now found ? not in Article 7 of the Central agreement where it was initially proposed
to go ? but in Article 16.2 of the UN agreement.)
Mr. Todd viewed this proposal, while not one that the union was leaping to embrace at
the time, as something of a concession on the employer?s part. The employer?s desire to
introduce the concept of pay for performance was not new. It had been expressed in the previous
round of bargaining and, although not implemented, was the subject of the then new Appendix
16 to the Central agreement which continues to read as follows:
It is understood that the employer wishes to consider the implementation
of pay for performance in the OPSEU bargaining units?
The union?s appetite for the concept of pay for performance had not grown since the last
round of negotiations. Indeed, Mr. Todd?s evidence was that this remained an extremely
controversial item between the parties and one which the union viewed as a strike issue. From
that perspective, Mr. Todd found it significant that the employer had, in the collective agreement
Article 7 X language it had drafted and tabled, not made any explicit reference to the phrase ?pay
for performance?. It may be that Mr. Todd?s assessment of the employer?s concession was overly
generous, but, at the bargaining table, form may occasionally be as important as substance.
In any event and however one might characterize the employer?s proposal it was not a
sufficient concession to attain collective bargaining peace ? a strike commenced 3 days later. It
continued for some 51 days until Memoranda of Agreement were executed on May 2, 2002.
Before proceeding further, it may be useful to consider the significance of the employer?s
initial choice to table its pay for performance proposals at the Central table. CECBA identifies
?wages? as a presumptively Local issue (i.e. one which belongs in the collective agreements of
the designated bargaining units). Wages may, however, be included in the Central agreement
should the parties agree to do so. But whether properly characterized as a Central or Local issue,
the employer?s pay for performance proposal was tabled at the Central table. And when specific
collective agreement language was then proposed, it was said to fall under the rubric of Central
Article 7 ?Pay Administration?. Indeed, Mr. Todd, in his evidence, took no issue with the
propriety of tabling the issue at the Central table. He relied, in part, on a 1995 Memorandum
10
between the parties which identified ?Pay Administration? as a Central issue. While it was not
necessarily looking favourably on the substance of the proposal, the union, at least through Mr.
Todd, had no issue with wherethe proposal was being made.
That view, however, is perhaps difficult to reconcile with the next proposal the union
tabled at the Central table on April 2, 2002 (and, in respect of which Mr. Todd was not
questioned ? by either counsel). In that proposal, the union tabled a ?(New) Salary note to be
appended to all salary grids, as follows?. And in what followed, the union reproduced the
employer?s proposed 7 X language in its entirety (although the percentage increases it advanced
were higher). The union?s proposal on this point concluded with the parenthetical comment:
?Subject to employer withdrawing its pay for performance proposal?. The reference to the plural
salary grids might suggest the issue was an inherently Local one. And the union?s condition of
the withdrawal of the employer?s pay for performance language following immediately upon the
union otherwise (and except for quantum) accepting the employer?s proposed language is also
puzzling.
But even if we accept that there was no issue at the Central table about the propriety of
wherethe employer was making itspay for performance proposals, the view expressed by the
union at the COR table was quite different.
As early as April 7, 2002, at a meeting of the full Corrections bargaining teams, Brian
Gould, the union?s chief Corrections spokesperson expressed the view that the employer?s
proposed 7 X belonged at the Local not the Central table. And two days later at a ?2x2? meeting
of the committees, the union proposed that the money the employer was offering in 7 X be used
instead to fund new steps on the Corrections grid, explicitly suggesting that 7 X not be applicable
to the Corrections unit.
The employer maintained its position of a Central ?max plus merit? provision and some
attention was paid, at the Corrections table, to questions of its application and implementation.
At one point, the union indicated that because of these uncertainties (none of which directly
engaged issues specific to unclassified employees), the Corrections union bargaining team would
be unable to recommend 7 X to its members. The employer suggested that any uncertainties
11
regarding implementation and application might be adequately addressed in a Letter of
Agreement in the Central collective agreement.
The union COR bargaining team remained unpersuaded. On April 26. 2002, at another
?2x2? meeting, the union tabled a comprehensive written proposal. Part of its wage proposal
included 2 new steps to be added to the Corrections wage grid. The proposal concluded with a
paragraph proposing that:
A letter of understanding will be appended to the COR agreement
specifying that Central Article 7 x will have no applicability to the members of
the Correctional Bargaining Unit because this issue has been addressed within the
context of the Corrections settlement.
The next significant development occurred on April 30 when, via the mediators, the
employer tabled comprehensive offers at all 3 tables. Among the significant changes to the
employer?s position was an apparent acceptance of the view espoused by the union COR
bargaining team to the effect that new additional grid steps were the preferred use of the monies
which would otherwise fund the employer?s proposed 7 X. Thus, the employer withdrew its
Article 7 X from the Central table and moved it (in the form of what was to become UN 16.2) to
the Unified table only. It also added a proposal unique to the Corrections table: the addition of a
single new step at the top of the Corrections grid. And finally, for our purposes, the employer
tabled, for the first time, a proposed Letter of Understanding, appended to its Central table
proposals. This is the letter which became Appendix 26 of the Central collective agreement and,
it will be recalled, now reads as follows:
This will confirm our understanding reached during negotiations that
where an unclassified employee progresses to the maximum rate of a
classification, the employee will be eligible for the additional amounts specified
in the new article 16.2 contained in the Unified collective agreement.
As indicated, this comprehensive employer offer was not communicated directly to the
union. Rather, it was transmitted via the mediators assigned to each of the bargaining tables.
Indeed, it would appear that, from at least that point until the Memoranda of Agreement which
ultimately resolved the strike were executed on May 2, 2002, there were no direct
12
communications between the parties and certainly no direct negotiations. (This is a point of some
significance to the union: it asserts that as there were no discussions between the parties
subsequent to the initial tabling of Appendix 26, there are no explicit representations made by the
union in respect of this appendix which can be pointed to as evidence of any shared mutual
understanding with respect to its application.)
The union responded to this proposal with a further comprehensive proposal for the
Correctional unit. It mirrored the employer?s offer to the extent that it excluded any reference to
max plus merit for that bargaining unit, and proposed an additional step on the Corrections grid.
And with the former max plus merit proposal as Article 7 X of the Central agreement having
been replaced by the employer?s proposed addition to Article 16 in the Unified agreement only,
the union withdrew its prior language aimed at clarifying that Article 7 X would not apply to
Corrections. The union also proposed other wage improvements beyond those last offered by the
employer for Corrections.
Mr. Todd testified that his understanding was that the employer?s last proposal was
presented as a ?take it or leave it? proposition, that the employer had no appetite for further
negotiations or concessions and, indeed, that were the union to reject the proposal, the employer
might take steps to attempt to publicly embarrass the union for its recalcitrance. The employer
witnesses did not paint an equally harsh picture of the tone of the negotiations at that stage. In
view of the lack of direct communications between the parties through the witnesses who
testified before me, I am, of course, unable to make any firm factual findings in that regard. Be
that as it may and notwithstanding the union?s final proposal, the parties did, on May 2, 2002,
execute Memoranda of Settlement which, at least by and large, reflected the employer?s final
proposal and not the union?s response to that proposal.
In sum on the points relevant for our purposes, the Memoranda and resulting collective
agreements contained no references whatsoever to pay for performance; max plus merit is
explicitly included in the UN agreement and wage schedule only; a new maximum grid level
step is found only in the COR agreement; and Appendix 26, the source of the union?s claim in
this case, is attached to the Central agreement.
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That description and, in particular, the differential treatment of UN and COR employees
was reflected in documents published by the union on its website in the hours following the
execution of the Memoranda. In separate postings aimed at the COR and UN bargaining units
respectively, the union described its achieved general wage increases as follows:
[for the UN bargaining unit:]
8.45 per cent over three years,
- an increase totalling plus
one per cent per year
- an additional for employees at the top of the pay grid? [i.e.
?max plus merit?]
[for the COR bargaining unit:]
8.45 per cent over three years,
- an increase totalling plus
- the creation of a new step on the pay grid for all classifications in the Correctional
five per cent
Bargaining Unit, to be paid at the rate of above the existing top rate?
A union news release published at the same time described wage improvements as
follows:
plus
- 8.45 per cent over three years, an additional one per cent per year [i.e. ?max plus
except Corrections
merit?] for employees at the top of the pay grid ; and
plus
- 8.45 per cent over three years, an additional immediate five per cent increase for
workers in the Corrections Category
bold
[emphasis in original;
bold underlined
emphasis added]
The union communications clearly indicate that onlyCOR employees could expect the
new 5% increment at the top of the grid and only UN employees could expect the benefit of max
plus merit.
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The union?s current claim, that Appendix 26 confers a substantive right on unclassified
(but not classified) COR employees to max plus merit is difficult to reconcile with the above
quoted union communications.
We have yet, however, to describe more precisely the genesis of Appendix 26. It is true
that it was reduced to writing and tabled for the first time on April 30, 2002 by the employer at
the Central table; was not the subject of any subsequent discussions between the parties; and
found its way into the attachment to the Central Memorandum of Agreement which resulted in
the Central collective agreement relevant to these proceedings.
We have already noted that some issues regarding the application and implementation of
max plus merit were discussed at the COR table. It is clear, however, that no specific issues
relating to max plus merit and unclassified employees were ever discussed at that table. They
were, however, discussed at the Central table.
Max plus merit was initially proposed as a Central issue, one which was to be
incorporated into Article 7 of the Central collective agreement, Pay Administration. It is not
surprising that this raised issues of its application to unclassified employees. Without reviewing
the relevant provisions in detail, it is sufficient to note that while full-time unclassified
employees are generally entitled to be paid the same salary as their classified counterparts, there
is nothing in the Central agreement providing for the application of Article 7 to unclassified
employees (and only those collective agreement terms specifically identified as doing so, apply
to unclassified employees).
Thus, so long as max plus merit entitlement was to be rooted in Article 7 of the Central
collective agreement, there was a legitimate question as to its application to unclassified
employees. Of course, this was a question of its application to bothCOR and UN unclassified
employees, not one or the other. And while the employer indicated that max plus merit was
indeed intended to apply to unclassified employees, the union asked for written clarification.
Both Ms. Bartley and Mr. Todd testified that these communications occurred late in the
bargaining. Of course, in the absence of comprehensive records of the type we saw from the
COR table, it is difficult to be precise about the timing of this exchange between the parties. Ms.
Bartley?s initial suggestion that it was on the eve of, perhaps even the day before the settlement
15
is highly unlikely. Even her revised estimate that the discussion/request occurred on April 30
seems doubtful ? Appendix 26 was first tabled on that day and there was no evidence of any
direct discussions between the parties on that day. The union?s request for written clarification
must have been made sometime prior to April 30. And it was clearly made at a time when the
employer was still proposing max plus merit as a Central item applicable to all employees (COR,
UN, classified and unclassified).
I am satisfied that Appendix 26 was the result of that request.
Similarly, I am also satisfied that the employer?s conversion, in its April 30 proposal, of
max plus merit from a Central item applicable to allemployees, into an item unique to the UN
unit to be included in Article 16 of the UN collective agreement onlywas a specific response to
the view expressed so clearly at the COR table that the COR bargaining unit would not accept
max plus merit and preferred to see those monies used to directly augment the salary grid. And,
in turn, this is why the employer also included in its April 30 proposal the introduction of a new
step on the wage grid, but only for the COR bargaining unit.
While the genesis of Appendix 26 seems clear, it is less than certain why, after
converting max plus merit from a Central Pay Administration issue to a Local wage issue, there
was any need for a letter such as Appendix 26. Further, even if it continued to provide some
bargaining clarity, one would have expected the employer to append it to the UN agreement ?
the only one containing the max plus merit provision ? rather than the Central agreement. But
while these may remain open questions, one fact emerges with pristine clarity ? the employer,
once it resigned itself to, indeed proposed a new step on the COR salary grid, had no intention of
alsocontinuing to propose to confer max plus merit benefits on COR employees (let alone on
unclassified COR employees to the exclusion of their classified counterparts). Looking at its
post-strike publicity, it appears equally clear that neither did the union understand unclassified
COR employees to be entitled to max plus merit.
The issue in this case is whether the employer has effected that result, however
unintentionally or unwittingly, by proposing and permitting Appendix 26 be attached to the
Central agreement.
16
Interpretation of the collective agreement
I turn first to whether the relevant language of the collective agreement admits to a clear
and unambiguous interpretation.
Again, it will be recalled that the union?s claim is based on the language of Appendix 26
of the Central agreement, which provides:
This will confirm our understanding reached during negotiations that
where an unclassified employee progresses to the maximum rate of a
classification, the employee will be eligible for the additional amounts specified
in the new article 16.2 contained in the Unified collective agreement.
The union?s advocated interpretation starts from the proposition that, unless the language
is somehow self-limiting, the provisions of the Central agreement apply to both COR and UN
employees. It points, for example, to Appendix 24 of the Central agreement which clearly and on
its face applies only to unclassified COR employees. Appendix 26 contains no such limitation:
its reference to unclassified employees simpliciter must therefore be taken as capable of
application to COR unclassified employees.
Thus, in the union?s view, while the source of the substantive right to max plus merit for
UN employees is found in UN 16, unclassified COR employees derive the right to max plus
merit from Appendix 26.
Indeed, in a single swat designed to establish both collective agreement clarity and the
success of the grievance, the union argues entitlement to max plus merit for unclassified COR
employees, is the only possible interpretation of Appendix 26.
UN 16.2 confers max plus merit entitlement on UN employees as a wage item.
Unclassified employees are generally entitled to be paid the same wages as their classified
counterparts. Therefore no clarification is required to establish that entitlement for unclassified
UN employees. (Such a clarification might have been necessary had the source of max plus merit
entitlement been found in the Pay Administration provisions of the Central agreement, since
17
Article 7 of the Central agreement does not clearly apply to unclassified employees.) Thus, the
only possible result of Appendix 26 is to confer max plus merit entitlement on unclassified COR
employees (even if that is to the exclusion of their classified counterparts).
The union also refers to and relies on cases such as Re Wasaga Beach Hydro-Electric
Commission and International Brotherhood of Electrical Workers (1995), 48 L.A.C. (4th) 409
(M.R. Newman) and Venture Capital USA Inc. et al. v. Yorkton Securities Inc. (2005), 75 O.R.
(3d) 325 (C.A.) in support of the well-established proposition that words in a collective
agreement or contract must be ascribed some meaning, urging me not to read the words of
Appendix 26 into interpretive oblivion.
The employer?s approach to the interpretation of the relevant collective agreement
provisions is, not surprisingly, quite different.
First, it asserts that Appendix 26 cannot be read in isolation but must be considered in the
context of the collective agreement as a whole. And while the provisions of the Central
agreement generally apply to both COR and UN employees, that is not invariably the case. There
are examples within the Central agreement of provisions with limited application (such as
portions of Appendix 18 and, as the union also pointed out in its submissions, Appendix 24).
Appendix 26 ? which the union asserts should be taken as referring onlyto unclassified COR
employees ? makes no specific reference to COR employees. The only designated bargaining
unit specific reference is to UN 16.2 and, therefore, it must be taken to apply to UN employees.
Further, a consideration of other collective agreement provisions makes it clear that
Appendix 26 has no application to COR employees, who have no independent entitlement to
max plus merit. In this regard, the employer repeats that while UN 16.2 confers max plus merit
entitlement on UN employees, there is no analogous provision to be found in the COR
agreement. Similarly, while the amounts of max plus merit entitlement are explicitly
incorporated into the UN Wage Schedules, no such quantification is to be found in the COR
Wage Schedules.
18
The employer also relies on a settled line of arbitral authority exemplified by the
following observation from Re Cardinal Transportation B.C. Inc. and Canadian Union of Public
Employees, Local 561 (1997), 62 L.A.C. (4th) 230 (Devine) at p. 236:
Where a monetary benefit is asserted, it normally falls to the Union to
show in clear, specific and unequivocal terms that the monetary benefit is part of
the employee?s compensation package. Such an intent is not normally imposed by
inference or implication?
Having considered the submissions of the parties, I have concluded that, while the
interpretation advanced by the union may be plausible, Appendix 26 cannot be seen to be clearly
or unambiguously conferring the right to max plus merit on unclassified COR employees.
I come to that conclusion for a number of reasons. Chief among them, I find the location
of Appendix 26 to be perhaps more troubling than its content. Given the parties? bargaining
scheme, an Appendix to the Central agreement is not the first place one would expect to find a
provision conferring a wage benefit on (a subset of) COR employees.
It might be suggested that Appendix 24 (which posits a formula for calculation and use of
seniority for unclassified COR employees) does something similar. But the differences are more
significant than the similarities. First, this Appendix deals with seniority, which is clearly a term
of the Central agreement. Appendix 26 deals with wages, presumptively a Local issue. And
Appendix 24 serves to, effectively, modify certain provisions of the Central agreement seniority
provisions for a distinct group of employees. If the union?s interpretation of Appendix 26 is
correct, it simply confers a benefit on a group of employees and does not serve to modify or
otherwise relate directly to any other provision of the Central collective agreement.
Further, considering other provisions of the COR and UN agreements, had the parties
wished to confer max plus merit benefits on some or all COR employees, one is at pains to
understand why that would not have been effected in a manner more similar to the treatment of
UN employees. In that regard, there is simply nothing in the COR agreement to suggest any such
entitlement for any COR employees. And there is similarly no inclusion of the max plus merit
entitlements in the COR Wage Schedules (as there is in the UN Schedules).
19
Finally, the very words of Appendix 26 themselves, appear to admit of some ambiguity.
The heart of the provision is as follows:
?where an unclassified employee progresses to the maximum rate of a
classification, the employee will be eligible for the additional amounts specified
in the new article 16.2 contained in the Unified collective agreement.
The union asserts that this provision is the source, the sole source, of entitlement to max
plus merit for unclassified COR employees. But this language, particularly in the context just
articulated, is capable of quite a different interpretation. Rather than being the source of any
specific entitlement, it may be nothing more than a clarification with respect to unclassified
employees in relation to an existing entitlement. Put somewhat differently, the Appendix might
be seen to be clarifying an entitlement rooted in UN 16.2, not conferring an otherwise non-
existent benefit. In other words, the Appendix might only apply to those who can otherwise lay
claim to the benefit of UN 16.2, i.e. to UN employees. It need not necessarily be viewed (as it
must under the union?s interpretation) as incorporating UN 16.2 into the Central agreement and
making it applicable to COR employees. (And while incorporation by reference is a common
device, the route selected here remains curious: a Local UN provision is said to be incorporated
by reference into the Central agreement so as to apply only to COR employees in the same
fashion as if the provision had been included or incorporated into the COR agreement.)
For these reasons, I am satisfied that there is no single obvious, clear and unambiguous
interpretation of Appendix 26. As a result, resort to extrinsic evidence which may serve as an
interpretative aid is both appropriate and required.
I turn now to the import of that evidence.
Negotiating history as an interpretive aid
The parties approach the import of the evidence of negotiating history quite differently.
20
The employer asserts that the meaning of Appendix 26 is clarified by a consideration of
the events which led to its proposal and adoption. The union rejected the employer?s insistence
on pay for performance ? certainly as the unique measure of compensation under the collective
agreement. As a consequence, the employer relented and proposed in its stead the notion of max
plus merit to provide some additional wage increases contingent upon satisfactory job
performance. This was proposed as a Central term applicable to all bargaining units.
Two aspects of the union?s response to that are then material. At the Central table, the
union sought clarification that unclassified employees would be entitled to the benefit. At the
COR table, however, the message was abundantly clear. COR employees would not accept max
plus merit and preferred instead that any monies the employer was prepared to so offer be
converted into simple wage increases via, as the union suggested, new additional steps on the
salary grid.
The employer made concessions to both of these expressed union concerns. It withdrew
its offer of max plus merit from the COR employees and replaced it with an additional step on
the salary grid. And, in respect of the union?s concerns that those entitled to max plus merit
should include unclassified employees, the employer tabled what became Appendix 26.
The course of negotiations make it abundantly clear that the employer was prepared to
offerone or the other but never intended to offer bothmax plus merit anda new salary grid level
to COR employees and certainly not to unclassified COR employees to the exclusion of their
classified co-workers. That conclusion is clearly understood and echoed in the union?s end of
strike publications.
The union paints a very different picture of the character of the negotiations. More
importantly, however, it starts from the proposition that the employer?s intentions are of no
moment to the determination of the grievance. If the employer made the mistake of proposing to
attach Appendix 26 to the Central agreement, it must live with the consequences regardless of its
intention.
21
I pause here to note that each of the parties, with perhaps varying degrees of reluctance,
ultimately did agree that wherethe employer chose to attach Appendix 26 was a mistake on its
part, a fact which, notwithstanding the parties? reluctance, emerges clearly from the evidence.
Returning to the union?s characterization of the evidence, in the late stages of bargaining,
the employer displayed little willingness to negotiate. Its April 30 proposal, which included
Appendix 26 to be attached to the Central agreement, was essentially presented as a ?take it or
leave it? proposition. Mr. Todd was of the view that the employer was unprepared to discuss or
answer any questions about its proposal. In the result, when the union ultimately accepted the
employer?s proposal, that acceptance was ?warts and all?.
In that context, Mr. Todd, in an argument echoed by counsel, asserted that ?specific
performance? ought to be the measure of collective agreement interpretation. Had there been
opportunities to discuss matters in the kind of climate Mr. Todd would have preferred for the
negotiations, the parties might well have had ample chance to clarify their proposals and
understandings (and, although Mr. Todd did not explicitly offer the suggestion, perhaps even to
correct unseemly errors). But since the employer chose to refuse such an approach, it must be
held to the words of the bargain it proposed and the union accepted. That approach to the
collective agreement might well favour one party or the other at different junctures. In respect of
Appendix 26, it favours unclassified COR employees.
Finally, another feature of the timing of the negotiations is critical to the union?s
submissions. From the moment the employer first proposed Appendix 26 in writing until the
Memoranda of Agreement were executed, there was no discussion whatsoever between the
parties regarding its meaning or application. In other words, there can simply be no evidence of
any shared mutual understanding between the parties that Appendix 26 was not to apply to
unclassified COR employees.
Decision
While there are aspects of the union?s submissions which are legally sound, I am not
persuaded that its characterization of the facts is entirely accurate.
22
First, it may be recalled that, particularly in the late phases, communications between the
parties were effected chiefly through mediators. Thus, it is true that, apart from what may have
been reduced to writing, neither side may have had direct access to the statements made by the
other. In that context, Mr. Todd?s conclusions about the employer?s intransigence and
unwillingness to discuss the final proposals may or may not be accurate. Indeed, even in his
evidence he took some pains not to attribute any direct statements (like ?take it or leave it?) to
the employer, but rather to convey the impression he had based, of course, on communications
from the mediator.
Further, the conclusion of unbridled employer intransigence is not entirely consistent
with all of the facts. For example, Mr. Todd acknowledged that questions could have been put to
the employer (again, via the mediator) about the employer?s proposals. The union, at least at the
Central table, chose (perhaps for good reasons) not to do so. There was evidence, however, that
the employer?s April 30 proposal did generate some questions (regarding productivity gains) that
were communicated to Ms. Browes-Bugden at the COR table. And more significantly, the union
chose to make a counter proposal to the employer?s April 30 proposal. And, finally, while the
terms of the Memoranda ultimately executed may have, by and large, reflected the terms of the
employer?s April 30 proposal, this was not necessarily uniformly and exclusively so.
In other words, it is inaccurate to suggest that there were no opportunities for
communication between the parties subsequent to April 30.
On the other hand, I am also satisfied that the pressure brought to bear on the union to
accept the employer?s April 30 proposal was intense. However unhappy that state of affairs may
have been from the perspective of the union and its negotiators, there is nothing to say the
approach was unlawful (and no such allegation was made). That is not to say that the manner in
which the employer chose to conduct itself comes without a price. Indeed, the perceived wounds
the union was prepared to expose in relation to its treatment some five years after the fact
suggest that those events may still yet have some lingering impact on the parties? collective
bargaining relationship.
But the question the union would have me decide is different. Should the employer,
particularly in view of the manner in which it chose to conduct the negotiations, be saddled with
23
the consequences of its error? The error, of course, is not so much tabling the words of Appendix
26; it is wherethose words were tabled. And if the results of that error are particularly grave (i.e.
expensive) for the employer and fortuitous for unclassified COR employees, so be it. Put
somewhat differently, the result urged would permit (unclassified) COR employees, who
apparently successfully ?resisted? the employer?s drive for pay for performance andmax plus
merit, to enjoy boththe latter benefit and the extra wage grid step they secured in eschewing max
plus merit.
I agree with the union, at least to this extent. If the employer has unintentionally and
unwittingly conferred the right to max plus merit on unclassified COR employees, the fact that it
did so ?by mistake? may well not be a defence to its liability under the collective agreement. But
the question I must answer is whether that right has been conferred in the first place. If it has,
then the employer?s ?mistake? may provide little defence. If it has not, the grievance must be
dismissed.
For the following reasons and having considered all of the evidence and the submissions
of the parties, I am not persuaded that Appendix 26 confers the right to max plus merit on
unclassified COR employees.
It is not so much the words of Appendix 26, but rather their location ? appended to the
Central agreement ? which is problematic. There are only three places where this letter might
have been appended. Had it been affixed to the UN agreement, there would clearly be no
question of any resulting entitlement for COR employees. Similarly, had it been appended to the
COR agreement, there would be no question as to its application to COR employees. It is,
however, the placement in the Central agreement which generates the current interpretive
ambiguity.
The context which gave rise to the initial tabling of the Appendix along with the
relegation of max plus merit to the UN table only, suggests there was no intention to confer max
plus merit on any COR employees. The employer was merely responding to two expressed union
concerns: the concern from the COR union bargaining team that max plus merit not apply to
COR and the concern from Central union bargaining team that any negotiated max plus merit
benefit extend to unclassified employees.
24
Of course, as the union argues, the mere absence of any employer intention to confer the
benefit may not be dispositive. But not only does the context of the tabling of the Appendix
negative any conclusion that the employer intended to confer max plus merit on unclassified
COR employees, it is equally clear in my mind that neither any reasonable participant in these
negotiations nor any dispassionate observer would have inferred that acceptance of such an offer
would serve to secure the entitlement the union now claims. That conclusion is clearly evidenced
by the clarity of the union?s end of strike communications. (It may also help to explain why it
took the union almost 18 months to file the grievance ? perhaps only the completion of a
particularly probing and exhaustive forensic review of the collective agreement would ever give
rise to even the theoretical possibility of a claim which was otherwise simply on no one?s radar
screen.)
The negotiating history does not support the union?s interpretation of the agreement.
There is no evidence of any proposals, discussions or understandings to support any ?meeting of
the minds? aimed at conferring max plus merit entitlement on unclassified COR employees. The
union?s case, at its highest, must stand or fall on the words of the agreement.
The union suggests, however, that there is similarly, no such evidence ? from the moment
the appendix was first tabled until the conclusion of negotiations ? to suggest a meeting of the
minds to exclude unclassified COR employees from the benefit of the appendix. While there is
some merit to that assertion, I cannot ignore the clear and obvious context which led to the
tabling of the appendix and, on that basis, I am satisfied that to the extent the negotiating history
assists in the interpretation of the collective agreement, it supports the employer?s argument that
the Appendix ? even placed in the Central agreement ? does not generate an independent
entitlement to max plus merit for unclassified COR employees.
The union asked that little reliance be placed on the clear and undisputed position
articulated by the union COR bargaining team that max plus merit not apply to COR employees
because these were representations made at the COR table with respect to a Central issue. I
cannot accept that submission. I began this award with a description of the bargaining structure.
But while there may be 3 bargaining units/collective agreements and there were 3 bargaining
25
tables, there is and was but a single employer and a single bargaining agent in respect of all of
these.
Similarly, notwithstanding the legislative scheme and the parties? practice, the clear
identification of max plus merit as either a Central or a Local issue remains somewhat elusive.
So long as it was discussed as a Pay Administration issue applicable to employees in all
bargaining units it was treated as a Central issue (despite the contrary suggestion from the union
COR bargaining team); once the employer agreed to the union?s suggestion (again, from the
COR bargaining team) that max plus merit not apply to COR, max plus merit became a Local
issue embedded in the UN (but not the COR) collective agreement. In this context, the
demarcation points between max plus merit as a Central or Local issue are less than crystal clear
and I am not prepared to discount the representations made by the COR bargaining team or to
otherwise conclude that the employer ought not to have relied upon or responded to those
representations. (Indeed, if max plus merit is, strictly speaking, a Central issue, one might be led
to question whether UN 16.2 is properly included in the UN agreement ? an assertion neither
party came even remotely close to making.)
Having regard to all of the foregoing, I am satisfied that the language of Appendix 26 ?
or perhaps more accurately, its placement as an appendix to the Central agreement ? gives rise to
an interpretive ambiguity. In a bargaining structure which includes specific and explicit max plus
merit entitlement for UN employees, one would not expect entitlement to a similar benefit to be
conferred by inference through the vehicle of an appendix to the Central agreement. A
consideration of the evidence supports the employer?s position that the appendix does not confer
max plus merit entitlement on unclassified COR employees. The conclusion that a subgroup of
COR employees would be entitled to bothmax plus merit and a new step on the wage grid is
impossible to reconcile with the manner in which the negotiations unfolded. Had the employer?s
?mistake? in this case been to append the letter to the COR agreement, the union?s argument may
well have been unanswerable. By ?merely? appending it to the Central agreement, the employer
may well be fortunate in avoiding the union?s asserted consequences of the error. However, in
my view much clearer language would have been required ? particularly in the bargaining
context described ? to permit the conclusion of entitlement to max plus merit.
26
Accordingly, the grievance is hereby dismissed.
th
Dated at Toronto this 12 day of June 2007
Bram Herlich, Vice-Chair