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HomeMy WebLinkAboutAikens 18-05-18IN THE MATTER OF AN ARBITRATION Pursuant to the Labour Relations Act, R.S. 1995 BETWEEN: NORTHERN CABLES INC. (“Employer”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION (“Union”) (Grievance of L. Aiken) ARBITRATOR: Jasbir Parmar On Behalf of the Employer: J.D. Sharp, Counsel Todd Stafford, Plant Manager Shelley Bacon, President On Behalf of the Union: Jessica Greenwood, Counsel Les Aiken, Grievor, OPSEU This matter was heard on April 23, 2018, in Brockville, ON. 1 I. INTRODUCTION 1. At issue is the proper wage rate for an employee who posts into a different position with an identical wage grid as his or her prior position. 2. The issue arises as a result of the individual grievance of Les Aiken. Mr. Aiken used to hold a position in the Twisting classification. In April 2017, as a result of being the successful candidate in a posting process, he moved to the position of Rod Breakdown. Those two positions have an identical wage grid. When Mr. Aiken was in the Twisting position, he was being paid the 12 Month rate. After his transfer to Rod Breakdown, he was paid the 6 Month rate. The Union submits this is a breach of Article 12.04 of the collective agreement. II. COLLECTIVE AGREEMENT 3. The following are the relevant provisions of the collective agreement: 12.04 The employer agrees to post permanent vacancies that occur within the bargaining unit for a period of seven (7) calendar days. During the period of the vacancy, the Employer may temporarily fill the vacancy as it sees fit. The Employer will consider applications and apply the foregoing provisions of this Article. The purpose of this job posting procedure is to provide employees with the opportunity to bid on jobs in a higher, lower or same grade or range of rates. When an employee bids on, and is successful in obtaining a lower paid position, the employee will assume the wage rate of the six (6) months range of the pay grid for that position and progress accordingly. *** 19.03 Temporary Transfers In the case of an employee who is temporarily transferred to a classification which is paid at a different hourly rate, the following will apply: a) If the temporary transfer is to a lower rated job, and is at the request of the Employer, the employee will receive his/her own hourly rate; b) If the temporary transfer is to a higher rated job, the employees will be paid at the higher hourly rate. *** 2 Schedule ‘A’ – Wage Rates Effective Feb 19, 2017 Packaging/Utility Start $17.61 6 Months $19.60 Fork Truck Start $17.86 6 Months $19.85 Test Start $17.86 6 Months $19.85 Twisting Start $17.61 6 Months $19.60 12 Months $20.71 Rod Breakdown Start $17.61 6 Months $19.60 12 Months $20.71 Armouring Start $17.61 6 Months $19.60 12 Months $20.71 Armouring Level 3 (Closed) $21.82 Extrusion to Level 2 Small or Large Start $17.61 6 Months $19.60 12 Months $20.71 Extrusion Level 3 Small or Large Start $20.71 6 Months $21.82 * complimented Maintenance - Licensed Trades Top rate achieve through qualifications Top Rate $27.51 * An employee must have the necessary skills to progress from Level 1 Extrusion to Level 3 * No pyramiding of premiums Armouring/Extrusion. Management will manage this progression with training and confirmation of skills III. AGREED STATEMENT OF FACTS 4. No oral evidence was provided. Rather, the parties agreed to the following facts: 3 1. Throughout the parties’ negotiating history, the wage rate for the “Twisting”, “Rod Breakdown”, “Armouring (to level 2)” and “Extrusion (to level 2)” have been assigned the same wage scale and progression 2. The Employer has provided the following information with regards to transfers within these four positions from 2007 to present: a) Employees who had their wages reduced upon transfer: i. November 2007 – Todd Streight moved from Armouring to Rod Breakdown under a temporary job posting ii. April 2016 – Gerard Lewis moved from Extrusion to Armouring iii. March 2017 – Chris Pedro moved from Extrusion to Twisting iv. May 2017 – Les Aiken moved from Twisting to Rod Breakdown v. May 2017 – Paul Vezina moved from Armouring to Extrusion vi. October 2017 – Ken Jones moved from Extrusion to Armouring b) Employees who did not have their wages reduced upon transfer: i. June 2012 – Les Aiken moved from Armouring to Extrusion ii. October 2015 – Les Aiken moved from Extrusion to Twisting iii. May 2017 – Ken Aylesworth moved from Armouring to Twisting 3. Employees who have achieved the 6-month pay rate in their position and successfully bid on a higher-rated position are paid at the 6-month pay rate of the new position. For example, Adam Brontmire was promoted from Packaging/Utility to Twisting in September 2017 and maintained the 6-month rate pay applicable to both positions, namely 20.02/hr. 4. When transferring between positions, higher, lower or same grade, the Employer does not drop bargaining unit members below the 6-month rate of pay if that rate has been achieved in the initial position. IV. SUMMARY OF SUBMISSIONS 5. The Union submits that article 12.04 is clear that there are positions which have the same, higher or lower range of wage rates. The Union notes the provision clearly addresses what will happen if an employee posts into a lower paid position (i.e. they are paid the 6 month rate), but is silent about what happens if an employee posts into a position that is higher paid or paid the same wage. The Union submits this silence creates an ambiguity. 4 6. The Union submits that this ambiguity is resolved when prior collective agreement language is considered. The current language has been in the collective agreement since 2007. In the 2004-2007 collective agreement, article 12.04 was identical except for the last sentence, which read “when an employee bids on, and is successful in obtaining a lower paid position, the employee will assume the lower wage rate and progression periods”. 7. The Union submits that the fact the parties included this last sentence in the earlier version of article 12.04 must be given meaning, and its only logical meaning is that lowering wages in the case of transfer to lower paid positions was a different way to do things. The Union submits the fact that the parties felt it necessary to state that a transfer to a lower paid position would result in the employee being paid the lower wage rate indicates the parties did not intend to give the Employer the right to lower wages in other circumstances. The Union submits the ability to reduce wages is an important issue, and something the Employer would have had to negotiate. If the parties had intended for the Employer to have that ability, it is argued that they would have clearly expressed it, like they did for transfers to lower paid positions. 8. The Union submits that the current article 12.04 must be interpreted in that same manner, given the only change the parties made was to the part of the provision that addressed transfers to lower paid positions. The Union submits that the current article 12.04 should be interpreted as meaning that employees who transfer to anything other than lower paid positions do not sustain a reduction in pay. The Union submits they should maintain their pay rate upon transfer. 9. By way of remedy, the Union seeks a declaration that the Employer violated the collective agreement when reducing Mr. Aiken’s pay upon his transfer, and an order that he be paid the difference in lost wages. 10. The Union relies on the following authorities: U.F.C.W., Local 175 – and – Casco Inc., 2012 CarswellOnt 7086 (Steinberg); Redpath Sugars and Chemical, Energy and Allied 5 Workers, Local 1688, 1996 CarswellOnt 6681 (Joyce); and Pacific Press v. G.C.I.U, Local 25-C, 1995 CarswellBC 3177 (Bird). 11. The Employer submits that the collective agreement language is clear and unambiguous, when interpreted as a whole, and therefore there is no reason to resort to extrinsic evidence. 12. The Employer submits the appropriate place to begin the analysis is Schedule A, which sets out the pay for all employees in all positions. The Employer notes that Schedule A refers to wage progression by referencing time: start, 6 months, or 12 months. The Employer submits that, given this structure, wages are based on time spent in the position, and not seniority. The Employer submits that there would no need for so many different classifications (since many of them have the same range of rates) unless it was time in the specific job which determined progression through the pay grid, reflecting proficiency and efficiency gained through job experience. Otherwise there could just be one generic classification, such as ‘operator 1’, which governed all the positions with the same range of rates. The Employer relies on Wix Corp. v. U.A.W., 1976 CarswellOnt1489 (Weatherill). 13. For this reason, the Employer submits, if an employee moves to a different position, then he or she is to be paid the start rate of that position, because they are starting in that position. 14. The Employer submits that the only modification negotiated by the parties is in the last sentence of article 12.04. The parties agree that if an employee transfers to a lower paid position, rather than moving to the start rate, he will be paid the 6 month rate. All other employees, the Employer submits, continue to have Schedule A apply. They are paid the start rate when starting in a new position. 15. The Employer submits that where the parties wanted to maintain wage protection they did so. In this respect, the Employer also points to Article 19.03, which provides that 6 employees maintain their wage in the case of temporary transfers only under certain conditions. 16. The Employer submits that there is no ambiguity in the collective agreement. If anything, there may be a ‘hole’, but, the Employer submits, an arbitrator has no authority to fill a hole. The Employer submits the Union is trying to create a right to carry a wage into a new position, but in doing so is ignoring the progressions agreed to in Schedule A. 17. The Employer notes the past practice has been inconsistent, and submits that therefore it is not useful as an aid to interpretation. Furthermore, the Employer submits that if anything it has been paying too a high a wage rate in certain circumstances. For transfers to same or higher paid positions, the Employer has also been paying employees the 6 month rate of the new position, rather than the start rate. The Employer submits it has been doing this out of a sense of fairness and generosity, and not because the collective agreement requires this. 18. The Employer asks that the grievance be dismissed. 19. By way of reply, the Union submits the Employer’s position that progression on the wage scale is based on time in a specific job is contradicted by the Agreed Statement of Facts, as employees who have obtained the 6 month rate in their position keep their rate of pay when moving to a new position. 20. The Union also submits that under the Employer’s interpretation the parties agreed that employees moving to a lower paid position would only have a limited decrease in pay, but intended for employees moving to a same or higher paid position to have a large decrease in pay. The Union submits this is an absurdity, and it is illogical that the Union would have chosen only to protect certain employees. V. ANALYSIS 7 21. The issue before me is whether the collective agreement allowed the Employer to reduce Mr. Aiken’s wage rate when he moved from the twisting to rod breakdown position. While the two positions have the exact same wage scale, Mr. Aiken’s wage went from the 12 month rate of $20.71 to the 6 month rate of $19.60 per hour. 22. For the purposes of determining this issue, I give little weight to the Employer’s past practice with respect to employees posting into a different position. This is because it is agreed that there has been no consistent practice. Furthermore, although all employees who post into a new position have been, at the very least, paid at the 6 month rate (if they have achieved the 6 month rate in their prior position), neither party is suggesting that the collective agreement actually requires that. Rather, the Employer submits it has been doing this voluntarily, out of a sense of generosity. 23. Article 12.04 states that the posting process is intended to allow employees to post into lower, higher or same wage grade positions, thereby acknowledging that employees may well make such moves. Article 12.04 then goes on to specifically address what will happen with respect to the pay of an employee who transfers to lower paid position. 24. The Union submits the fact that article 12.04 is silent with respect to the wage rate for other types of transfers (namely to a same or higher paid position), the provision is ambiguous and therefore extrinsic evidence of prior collective agreement language should be considered. 25. The Union referred to U.F.C.W., supra, in support of this submission. In that case, the collective agreement provision stated that employees who were called in would be paid “a minimum of 4 hours at double time”. The issue was their pay rate for work performed beyond those 4 hours. The arbitrator noted that given the silence on this issue one was left to infer the appropriate rate. However, he also noted that the particular language of the provision could equally support the support the conclusion that the rest of the hours were also to be paid at double time or the conclusion that this provision was a limited exception to 8 the general overtime provision in the collective agreement. For these reasons, the arbitrator concluded the provision was patently ambiguous. 26. I do not see this decision as indicating that a particular provision’s silence on an issue is, in and of itself, sufficient to indicate an ambiguity. That conclusion was reached in U.F.C.W where the silence meant the issue was unanswerable without drawing an inference, and there were two equally possible interpretations given the structure of the collective agreement. 27. In the present case, the focus of the provision at issue is not really about pay. Article 12 as a whole is about vacancies, and article 12.04 is about the posting process – how long the vacancy must be posted; that it can be temporarily filled; and who can apply. 28. In article 12.04 the parties included a sentence saying that employees who bid to lower paid positions will assume the 6 month rate. The fact that article 12.04 does not mention the wage rate for other transfers does not automatically mean there is an ambiguity about how the parties intended to address those situations. That conclusion cannot be reached without considering whether that issue can be resolved by considering article 12.04 in the context of the collective agreement as a whole. 29. In the present case, Schedule A is where the parties have set out the wage rate for each of the different positions. Thus, the answer to the question of how much an employee should be paid when they hold a certain position is found in Schedule A. 30. Schedule A provides different rates for “start”, “6 months” and “12 months”. There is nothing in Schedule A which suggests the rates for each of these levels is related to seniority with the Employer. Given the structure of Schedule A, where for example a higher rated position like Extrusion 3 has a wage scale that builds on a lower rated position like Extrusion 2 but uses the same ‘start’ and ‘6 month’ references, the reasonable conclusion is that this refers to time in the position. The same conclusion was reached in Wix Corp., supra, which considered a wage schedule with a similar structure. 9 31. I also note that the structure of the wage scale, which sets out rodbreakdown and twisting as two separate classifications indicates the parties recognize that these are two different jobs, which just happen to be rated similarly with respect to wages. 32. The Union suggested that the fact that employees who reach the 6 month level in a job are maintained at the 6 month level upon transfer detracts from the conclusion that wage progression in the wage scale set out in Schedule A is based on time in the job. However, the Employer was clear the maintenance of such employees at the 6 month level in the case of all transfers was not based on the requirements of the collective agreement. Rather, they were doing this voluntarily. The Union also did not suggest, because it obviously is not supported by the language of the collective agreement, that the collective agreement requires that all employees who post into a different job be paid at the 6 month rate. 33. When the collective agreement is considered as whole, I find that the appropriate wage rate for an employee who accepts a new position, whether it be on commencement of employment with the Employer or as a result of a job posting, is based on Schedule A. Only in the case of a transfer to a lower paid position does article 12.04 require a different result. 34. The Union suggests that such an interpretation should be avoided because it leads to an absurd result. The Union submits it makes no sense that the Union would negotiate wage protections only for some transfers, and leave other employees who are actually transferring to same or higher rated positions to suffer a larger wage loss. 35. First, there is no evidence before me of what the Union was trying to achieve in negotiations. Second, the fact that a particular provision does not appear to treat everyone equally is not an absurdity. Labour relations parties choose to do that in variety of circumstances for a variety of different reasons. Furthermore, that fact is not a basis to override an interpretation based on the plain and ordinary meaning of the language in the collective agreement when interpreted as a whole. 10 36. The parties clearly knew and expressly addressed the fact that employees may transfer to all sorts of new positions as a result of the posting process. Yet, they chose only to address the wage situation of transfers to lower paid positions in this provision. This is particularly notable since these parties clearly know how to express an intention to address wage rates outside of Schedule A. In addition to the last sentence of article 12.04, the parties addressed wage rates in Article 19.03. In that provision, the parties expressly indicated what happens to wages when an employee temporarily transfers to a lower rated job at the Employer’s request, and also what happens when an employee temporarily transfers to a higher rated job. They obviously know how to clearly address the issue of wages separate from Schedule A when they wish to do so. In the case of permanent transfers to same or higher rated jobs, they did not. 37. I find that the collective agreement does not require the Employer to maintain an employee’s current wage rate when he or she transfers to a new position as a result of a job posting. Accordingly, there was no breach with respect to Mr. Aiken. VI. DISPOSITION 38. The grievance is dismissed. Dated this 18th day of May, 2018. “Jasbir Parmar” ___________________ JASBIR PARMAR