Loading...
HomeMy WebLinkAboutVELLONE GROUP-1986-23-07 RECEIVED J U L 2 5 1985 IN THE MATTER OF AN ARBITRATION PURSUANT TO THE LABOUR RELATIONS ACT, R.S.O. 1980, c.228, s.45 BETWEEN: Association of Allied Health Professionals: Ontario (the "Association") and Kingston General Hospital (the "Employer") Re: Group Grievance - Pav Levels Before: Saul J. Frankel, Arbitrator For the Association: Sandra Nicholson, Labour Relations Officer For the Emplover: Don Halpert, Director, Human Resources Heard at Kingston, Ontario, July 17, 1986. AWARD This is a group grievance in which it is alleged that the Employer is not conforming to the pay schedule and anniversary date provisions of the collective agreement insofar as they apply to the five grievors. The grievors are: the Senior Vocational Rehab Counsellor (VRC), Sandra Vellone, and four Vocational Rehab Counsellors - M. Catlin, S. Campbell, R. Pawley and J. Johnston. The collective agreement in question has an expiry date of June 30, 1986. It was signed on April 4, 1986, subsequent to an interest arbitration award dated February 14, 1986. The monthly "Wage Rates" for VRCs are set out in Schedule !I All of the collective agreement as follows: Senior Vocational Rehab Counsellor Effective July 1 , 1984: 2306 2401 2496 2591 2687 2781 Effective July 1, 1985: 2467 2562 2657 2752 2848 2942 Effective Feb.14, 1986: 2670 2776 2884 2992 3099 3205 Vocational Rehab Counsellor Effective July 1 , 1984: 2128 2196 2265 2332 2401 2469 Effective July 1, 1985: 2277 2345 2414 2481 2550 2618 Effective F eb . 14, 1986: 2354 2433 2513 2594 2673 2754 The six rates shown against each of the effective dates reflect a series of incremental steps in the pay ranges of the respective positions. They are normally given annually in accordance with art 16.03 and, as will be seen, each of the grievors occupied a particular step (or level) in the pay 1 range of her or his position on February 14, 1986. The relevant portion of art. 16.03 reads as follows: Annual Increments Annual salary increments shall normally become effective the first day of the pay period following the anniversary date of employment with the Employer. Increases shall be given on merit only, as determined by the Department Head, and will in no sense be regarded as automatic. It may be noted that merit is not an issue in the present reference. The Employer indicated that in applying the rates for the senior VRC and the four VRCs that went into effect on February 14, 1986, and in determining the new anniversary dates, it had been guided by the language of the interest arbitration award. In its interpretation, the effect of that award was to reclassify the VRCs as of February 14, and to bring them within the provisions of art. 15.05: An employee upon promotion to a higher classification will be slotted into the appropriate year category of the new classification so that the increase is not less than one full increment in her former classification. The salary increase shall be effective from the beginning of the first pay period following the date of promotion. The new anniversary date for seniority salary increments would then become the date of promotion. According to the Employer, therefore, the status of the grievors for the purpose of pay and increments changed after February 14, 1986: July 1 , 1985 Feb. 14, 1986 Name Position Rate (Step) Rate (Step) S. Vellone Sr. VRC 2942 (6) 3099 (5) M. Catlin VRC 2618 (6) 2754 (6) S. Campbell VRC 2618 (6) 2754 (6) R. Pawley VRC 2550 (5) 2673 (5) J. Johnston VRC 2414 (3) 2513 (3) 2 The new first anniversary date for all the VRCs was to become February 16, 1987. The Association objected to the admissibility of any reference to the interest arbitration award. Whatever might have been said in that award is extrinsic to the language of the collective agreement which is clear, unambiguous and binding on the parties who signed it. Ms. Nicholson referred me to the discussion on extrinsic evidence in Brown & Beatty, Canadian Labour Arbitration (2d Edition), pp 152 ff. I indicated that I was aware of the extensive jurisprudence on this point. Unless I found an ambiguity on the face of the relevant articles of the collective agreement, or was persuaded by the Employer that a latent ambiguity existed which might be resolved by extrinsic evidence, the language of the interest arbitration award - or any part of it - would have no bearing on my decision. I accepted a copy of item 5 on page 13 of the interest arbitration award with the clear reservation that its admissibility, or the weight to be given it, remained to be determined. The Association led evidence to the effect that the grievors had not been promoted and/or reclassified - in any meaningful sense of those terms. There had been no change in the titles of their positions or in their duties and responsibilities. They were simply notified that their salary levels and anniversary dates would be as tabulated above. In the case of Ms. Vellone this involved an actual downgrading from step 6 to step 5 of the Senior VRC salary range which, taken 3 together with the setting of her new anniversary date as February 16, 1987, entails a substantial monetary loss. The four VRCs were given the new rates (i.e. effective Feb. 14, 1986) for their respective levels in the VRC range. Their individual anniversary dates, however, were moved to February 16, so that those who are below the top of the VRC salary range would not be eligible for the annual increment until February 16, 1987. Thus, while Campbell and Catlin, who are already at the top of their range, would not experience a monetary loss as a result of this change, Johnston and Pawley would suffer a loss in that their eligibility for the annual increment will have been put back about six months in the case of Pawley, and more than a month for Johnston. In her submission on behalf of the grievors, Ms. Nicholson asserted that it was clear from the evidence that the Employer had improperly applied the wage rates that were to become effective on February 14, 1986. The grievors had not been promoted or reclassified and art. 15.05 of the collective agreement was not at all applicable. There is no clause in the agreement that provides any alternative to the normal implementation of the salary scales in Schedule "A" on the specified effective dates. The salary provisions are clear and unambiguous and should be applied as written. The grievors should receive full compensation based on their levels on the salary scale prior to February 14, 1986, and their anniversary dates should remain undisturbed. Art. 16.03 is clear in its provisions for movement through the 4 salary scales. The purpose of the present reference to arbitration is to interpret the collective agreement, not the interest arbitration award that preceded it. Mr. Halpert, on behalf of the Employer, elaborated its submission that the salary provisions of the collective agreement, insofar as they applied to the VRCs, contained a latent ambiguity. This ambiguity is disclosed by adverting to the interest arbitration award which, in the section that establishes the pay scales for VRCs as of February 14, 1986, refers to "reclassification" and the "move" of the Senior VRC to the Social Worker II pay scale, and to the "move" of the VRCs to the OT/PT scale. Given the language of this award, the Employer is left with art. 15.05 as the only one that deals with reclassification. The salaries and anniversary dates established by the Employer for the five grievors, with effect from February 14, 1986, are consistent with art. 15.05 and Schedule "A" and should be sustained. I have studied the evidence and have carefully considered the submissions of the parties. The grievors. in my judgment, have established the validity of their allegation that the Employer had not implemented their pay levels - as of February 14, 1986 - in accordance with the provisions of the collective agreement. The Employer's position that the collective agreement contains a latent ambiguity which can only be resolved by reference to the extrinsic evidence of the interest arbitration award which formed the basis of the pay provisions cannot be sustained. '" ~ The arbitral jurisprudence regarding the admissibility of extrinsic evidence is well established. A useful and concise statement of the matter is found in the judgment of the Ontario Court of Appeal in Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. et al. (1968), 3 D.L.R. (3d) 161, an excerpt of which is quoted in Brown and Beatty (supra) at page 154: A transaction having been reduced to writing, extrinsic evidence is generally inadmissible to contradict, vary, add to or subtract from its terms. This is fundamental in the interpretation of written instruments. Parol evidence may, however, be admitted in aid of interpretation. Where the language of the document and the incorporated manifestations of initial intention are clear on a consideration of the document alone and can be applied without difficulty to the facts of the case, it can be said that no patent ambiguity exists. In such a case, extrinsic evidence is not admissible to affect its interpretation. On the other hand, where the language is equivocal, or if unequivocal but its application to the facts is uncertain or difficult, a latent ambiguity is said to be present. The term "latent ambiguity" seems now to be applied generally to all cases of doubtful meaning or application. I find the relevant provisions of the collective agreement to be clear and unambiguous. The parties signed the agreement on April 4, 1986, and it is this document that I am under an obligation to interpret. As if to underline what is surely recognized as trite law, art. 10.11 of the collective agreement states: The Arbitration Board shall not be authorized to make any decision inconsistent with the provisions of this Agreement, nor to alter, modify, add to or amend any part of this Agreement. I have read the portion of the interest arbitration award relied on by the Employer and do not find that it discloses 6 a latent ambiguity in the pay provisions for the Vocational Rehab Counsellors. The mere fact that the award uses the term "Reclassification" (rather loosely) in the heading of Item 5, and that it increases the pay scales of the Senior VRC and the VRCs to the same levels as those of Social Worker II and OT/PT, respectively, cannot be construed as constituting "promotion to a higher classification" within the meaning of art. 15.05. In any case, the provisions of the collective agreement that are pertinent to the matter before me do not fall into the category of "patent" or "latent" ambiguity. They can be applied to the facts without difficulty. Schedule "A" provides for three increases in the pay scales (wage rates) of the Senior VRC and the VRCs - the first to take effect on July 1, 1984, the second on July 1, 1985, and the third on February 14, 1986. The increases effective on February 14 are set out in precisely the same form as those for July 1, 1984 and 1985. There is nothing to suggest, let alone require, that the February 14, 1986 scales were to be implemented and administered any differently from those that were made effective in 1984 and 1985. By the same token, there is nothing in the collective agreement that qualifies or conditions the applicability of art. 16.03 in respect of the pay scales for the VRCs that became effective on February 14, 1986. For all of these reasons, this grievance succeeds. As of February 14, 1986, Ms. Vellone is to be restored to pay ! step (level) 6 of the Senior VRC scale ($3205). She is to be compensated for all monetary losses resulting from the Employer's action of placing her on pay step 5 ($3099). M. Catlin, S. Campbell, R. Pawley and J. Johnston were placed at their appropriate pay steps on February 14, and no monetary adjustment is called for in their case. Each of the grievors, however, is to be re-assigned the anniversary date applicable to her or him prior to February 14, 1986. I shall retain jurisdiction for thirty days to deal with any difficulties that may arise in the implementation of this award.. ~/- V/?c:?~'&/;?~ Saul Frankel Arbitrator OTTAWA, July 23, 1986. 8