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Savoie 10-04-19
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There were five or six of these in addition to Mr. Savoie's which resulted in the employee having been paid more in the interim than they would have if the original implementation had been made at the higher level, which the College refers to as overpayments. By contrast, it is the union's position that the transition to the new system was completed by March 1, and that the agreement about retroactivity is an agreement affecting only retroactive compensation for an undervalued position within the new system, which, but for the local agreement, would have been governed by the date of the grievance. They underline that without the local agreement, the large number of grievances filed directly after the implementation would have had to be processed within the time limits and the normal collective agreement provisions about retroactivity for classification grievances would have applied as follows: 18.4 Classification Grievances 18.4.1 Grievance to College official An employee who claims his/her assigned job is improperly evaluated may present a grievance in writing to the College official designated responsible for classification grievances. The written grievance must specify the Payband claimed by the employee to be appropriate. 18.4.1.1 Retroactive Payment It is understood that there shall be no retroactive payment prior to the date of presentation of the written grievance as specified above. The union maintains that the grievance was not about the conversion to the new system, but the ongoing incorrect classification at Payband G, and that the implementation of the award on the merits should have been done as an ordinary classification grievance according to Article 17.2.1 of the collective agreement, which reads as follows: 17.2 Promotion/Re-evaluation 17.2.1 From A Permanent Position An employee who is promoted or re-evaluated to a higher payband shall be paid the rate for the new payband which provides an increase of not less than the next wage rate step increase which would have been available to the employee in his/her former payband. Where the employee was receiving the maximum rate, the increase shall not be less than the difference between the maximum rate and 3 the preceding rate step in the former payband. The new wage rate shall not exceed the maximum rate of the new payband. In light of this portion of the collective agreement, the union says the decision on the merits should be implemented by moving the grievor from his March 1 Payband G rate of $25.81, to a rate in Payband H on the same grid, which would give him not less than the next highest step in Payband G, which was $26.58. That would have put him at $27.12, the two year rate for Payband H, and he would have progressed on the grid for Payband H from there. The employer accepts that this would be the correct result for a March 14 grievance, but for the local agreement. Thus, the focus of the dispute is on the meaning of the local agreement, which the employer maintains resolves the dispute in its favour while the union disagrees. The employer's position can be described as retroactivity of the grievor's placement into the new system, the union's as limited to pay retroactivity of a reclassification within the new system. The union also notes that a "no loss" understanding - that no negative impact on hourly wages would flow from the implementation of the new evaluation system - was part of the whole transition to the new system. This was expressed in a memo dated January 25,2007 issued by the Classification Review Committee, a joint committee of the provincial parties, in anticipation of the March 1 implementation date, as follows: An employee's hourly wage will not be negatively affected by the implementation of the new evaluation system. A "grand-parenting provision" has been introduced to address situations where a position has been evaluated at a lower wage level... It is worth noting before going further that this provision was not violated as the grievor's wage rate effective March 1,2007 would be higher than the grievor's rate under the old system, regardless of which of the competing positions as to retroactivity is adopted. It is only the time lapse involved in going to arbitration which created the effect of there being more paid in the interim than would have been the case if the job had been evaluated at Payband H in the first place. As well, I would observe, as was touched on in evidence and argument, that whichever method had been chosen, someone might well have been in the position in which Mr. Savoie has found himself. Changeovers from any system to another at a defined date, much like the timing of exchanging one currency to another, may catch individuals in slightly different positions in more or less favourable ways, when looked at through the lens of subsequent changes. However, in our context of a re-evaluation upwards, unlike unpredictable fluctuations in currency rates, there are definite limits to the amount of variation in impact either way, because of the fixed pay grids negotiated by the parties. Turning then to the question to be determined: 4 How should the local aareement be interoreted? The parties commenced argument on the first day of hearing on the basis of documents and agreed facts. As the argument developed it became clear that the parties took different positions as to the meaning of the local agreement, and it was agreed they would both call evidence. A second day of hearing was arranged for that purpose. The employer's evidence was given by Sheila Wilson, Manager, Labour Relations, and the College's project lead for the implementation of the new system at Fanshawe. The union called Jean Fordyce, who was local president at the time of the disputed local agreement, and had since begun working as an OPSEU staff representative. There is no dispute on a number of points. Firstly, the agreement, which was partially documented in e-mails, covered grievances or issues concerning the new evaluations filed or raised before September 1,2007, which included Mr. Savoie's March 14 grievance. Secondly, and centrally, any resulting difference in pay would be retroactive to March 1. Further, the parties agree that putting the grievances on hold meant that, pending the internal review, they would not conduct step meetings or go to arbitration, saving administration time and potentially cost, particularly if the review resolved the grievance or concern. Beyond that, the witnesses had quite different views on the content of the agreement. Ms. Wilson's understanding of the agreement was that retroactivity to March 1 would be as if the College had erred and was implementing the evaluation as of the day before, February 28, as if it had been rated in the correct way from the beginning. Her view was that the retroactive change would make "right" the evaluations of any of the positions that had not been evaluated properly in the first place. She said the College commitment was that any positions reclassified as a result of the review period would be retroactive to March 1, using the implementation guidelines in the collective agreement. To her this meant moving the person's classification and pay as if it had been done that way directly from the old system to the correct level in the new system on March 1. She understood that Ms. Fordyce had agreed to this on behalf of the union, and remembered that Ms. Fordyce used the words to "ensure the employees are made whole". She also remembers asking Ms. Fordyce what she meant by "make whole", and that she replied "as if it was the correct way in the first place". Ms. Wilson was not clear whether this agreement was made in the latter part of February or early March or whether at a meeting or on the phone, but she was sure it had been made in direct contact with Ms. Fordyce. She recalled a number of meetings, and said Ms. Fordyce was on vacation at some point. There were no notes of these conversations in evidence. Ms. Wilson did not agree that there was an agreement to review jobs of grievors first as the union asserts. It was her view that she had told the union that the College 5 would be reviewing jobs of people who had not grieved as well. She said she did not agree with what Ms. Fordyce wrote in this regard in the following March 23 e-mail: This is to inform you that we do agree to recommend and encourage our members to put classification grievances on hold, pending a review of their ratings by your review committee. We do this, with the understanding, that any that grieve will go first under your review process and that retroactivity is to March 1, 2007. We also expect that you will inform us that the review is completed and the results so that we can discuss it with the grievor to decide if the grievance is settled, withdrawn or activated. We need your agreement in writing, otherwise we will have to reconsider our advice to our members. Our main concern is that we do not want to hear that you are reviewing those members from departments that do not grieve first, this could be construed as punishing those that chose to exercise their grievance rights, upon getting the local's advice. Nonetheless, Ms. Wilson agreed there was no writing from the College on the subject of the agreement before an e-mail of August 10, which will be discussed below. That e-mail does not take issue with any of the points in the March 23 e-mail. Nor does it accept all of those points, or mention the implementation rules. Ms. Fordyce, the union's witness, recalls the discussion with Ms. Wilson as communicating that the union was unwilling to tell people not to grieve, but that it was not opposed to putting grievances on hold, because it would be less work and hopefully the results of the review would resolve some issues. She said she did not agree to re-do the initial classification in the new system, that she just wanted to make sure people got retroactivity to March 1. Ms. Fordyce testified that what she meant by "retroactivity is to March 1" in the March 23 e-mail set out above was that, using the March 1 wage grid, grievors who were to receive a raise, i.e. were reclassified upward, would get March 1 retroactivity, in accordance with Article 17.2.1 of the collective agreement. However, Ms. Fordyce did not suggest that she had discussed that specifically with Ms. Wilson. She testified that she did not remember a conversation with Ms. Wilson concerning making grievors whole, that she only remembered the points she put in the e-mail to Ms. Wilson, set out above, and that if she had agreed to anything else, she would have put it in the e-mail. Ms. Fordyce also testified that she had dealt with Ms. Wilson over a considerable period of time, and tended to confirm discussions in writing. Ms. Fordyce said she knew at the time that it would make a difference for some people whether they went directly from the old system or were re-evaluated within the new system, but she did not indicate that she had discussed that point with Ms. Wilson either. She said she would not have agreed to extend the implementation process past March 1, because it would have 6 disadvantaged certain members. It was Ms. Fordyce's view that if the intention had been to extend the implementation process they would have used the protocol suggested by the provincial parties (the College Compensation and Appointments Council and OPSEU). This comment refers to a January 25, 2007 memo from the joint Classification Review Committee (CRC) at the provincial level, which provided the following suggestion to the local parties: For Colleges who would like to implement a pre-grievance appeal process, CRC suggests building it into the Step 1 process. The local parties would need to develop a "memorandum of agreement" waiving the time limits, and outline the steps to be used and specific deadlines. Regardless of whether such a process is being contemplated, we recommend that the local parties consider extending the time limits in Article 18.4 to allow as much time as possible for discussion to take place before a grievance is forwarded to arbitration. Ms. Fordyce's view was that the transition from the old to the new system happened on February 28, so that as of March 1, employees were on the March 1 chart, which was why she put March 1 as the reference date in her e-mail. She said the review period was a College decision, of which she was informed after the fact. She did not agree with employer counsel's suggestion on cross- examination that the whole purpose of putting the grievances on hold was to give the College a second opportunity to "get it right", or that both parties were talking about making people whole as a result of moving people form the old to the new system where there had been an error. Rather, for the union's part, she said that she was talking about a classification grievance after the transition had been completed. She said the fact that a retroactive date of March 1 was more beneficial than the collective agreement limitation to the grievance date was why they had agreed to put the grievances on hold. On August 10,2007, Ms. Wilson sent a memo to managers, with a copy to the union, the most pertinent part of which reads as follows: Human Resources will be finalizing the post March 1, 2007 PDF [Position Description Form] review process by mid September, 2007. If there are evaluation rating changes resulting in a compensation adjustment, the salary adjustment will be retroactive to 1 March, 2007. Effective 1 September, 2007, upon review of a position description by the Job Evaluation Committee, any resultant salary adjustment will be effective the date of written notification of the review to Human Resources or, in the case of a classification complaint filed in accordance with the Support Staff Collective Agreement, the date of the written grievance. Four days later, on August 14, Ms. Fordyce sent an e-mail seeking clarification as follows: It was our understanding that the letter was to explain to managers that September 1, 2007 was the deadline for our members to receive retro back to the initial March 1,2007. Any grievance received by the college after September 1, 2007 will be retro only to the date of the grievance. 7 This letter from Sheila to managers could be construed that if the college doesn't review it until after Sept. 1, then the grievance date is the retro date. We believe this needs clarification and so we don't want to send this letter as it stands to our members. We suggest you resend the letter to management and clarify the following: "that any grievance or request for review received after September 1, 2007 would be retro to the date of the grievance or complaint. Any grievance or request for review received before Sept. 1 would be retro to the March 1, 2007 date as this would adhere to the commitment from the college to our members."... On September 4, 2007, Ms. Wilson replied bye-mail indicating that this was the correct interpretation of her August 10 e-mail to managers. On August 14, 2007, Ms. Fordyce also sent an e-mail toMs. Ballantyne, the College's Director of Human Resources, copied to Ms. Wilson, in response to receipt of an e-mail from Ms. Wilson which had provided the results of reclassifications up to August 10 arising from the College's review process. In this e-mail.Ms. Fordyce states that "the problem is that we have over 50 grievances, in which, the local, at the request of the college, asked our members to be patient and wait for the review to be conducted by the college and to put their grievance on hold." The e- mail goes on to say that, contrary to the expectation communicated when the local agreed to encourage their members to put their grievances on hold, the College had not reviewed the jobs of those grieving first. Rather, they had reclassified a few grievors, but had also reviewed all the jobs in a department in which no one had grieved, leaving the remaining grievors to wait. The union was frustrated with this, and stated that it would make them reluctant to enter into such an agreement in the future. Further, it requested a commitment in writing that the grievors would be reviewed first, failing which, they would suggest to their members to take their grievances off hold, which would ensure they would be dealt with first as the College would have to adhere to timelines. Although this e-mail clearly indicates the focus of the union's concerns at that time, it does not clarify the understanding between the parties as to retroactivity. Nor was there any suggestion in argument that it changed the local agreement as to the March 1 date. In argument, the employer underlined its view that the root of the dispute is in the implementation of the job evaluation system made effective March 1, 2007. It is the College's position that the effect of the decision on the merits reclassifying the job upwards is that when the new system came into effect on March 1, the grievor should have been at Payband H, instead of Payband G. To correct that, and create a seamless implementation process, it is the employer's position that it makes sense to re-do the transition from the start of the new system, using the implementation rules. More specifically, they say that is what was agreed to locally and the agreement should be 8 enforced. For consistency and fairness, retroactivity was agreed to go back to March 1, 2007 rather than the actual grievance date, a departure from the collective agreement, for concerns and grievances raised during the review period. Any complaint after September 1 would be retroactive effective back to the date of the grievance as provided in the collective agreement. Counsel argues that there was no reason for the College to agree as it did, to a modification of the collective agreement's prescribed retroactivity date, unless the implementation rules were applied to the revised evaluation. He stresses that the union's approach has an air of unreality to it, ignoring the basic fact that all this was the result of the transition to the new system. The College notes that it is uncontested that after a very time-consuming and difficult change-over, concerns were raised by employees, the union and some managers that the employer might not have gotten everyone of the 425 new job descriptions and evaluations right, which could lead to incorrect placement on the salary grid. So the employer approached the union to indicate the concern and the college's hope they could do a review fair to all whether or not they had grieved. If it resulted in different placement on the grid, people would be made whole in that transition. This was a wholesale review to ensure the integrity of the transition and honour the implementation guidelines, which counsel submits makes sense of why the college would do that, just having gone through the "sea-change" to the new system. For its part, the union argues that the question is whether there is a local agreement and what it is. Union counsel argues that the agreement is essentially a moratorium on going to arbitration, providing that the grievances are on hold and the timelines are extended. In the union's submission, the exchange was in the nature of an agreement that if the union would not rush the College in reviewing any disputed job classifications, the College would pay retroactivity back to March 1 and review the grievances first, prior to concerns raised through other channels. The union disagrees with the employer's submission that somehow the union agreed that it would be "as if the initial assessment had not happened". They stress their view that nothing was agreed beyond the points in the e-mails from Fordyce to Wilson. The union maintains that although the e-mails mention March 1 as the date to which a salary adjustment will be retroactive, they do not deal with the other issues dividing the parties. The union does not assert that Ms. Wilson's recollection is not sincere; they say that it is a case of two people coming from different points of view with honestly different recollections. In the union's view, there was certainly not an agreement in the sense of both parties' knowing what it provided. The union takes the position that there were many reasons to make the agreement documented in the e-mails, but no reason for the union to give away rights, which is how they interpret the employer's position. The union underlines that the new classification wage grids were being paid as of March 1, and asserts that there is no basis to take the grievor's wage rate back to February 28, which would be 9 necessary to implement the employer's approach. On March 1, the old system is extinct, inaccessible, in the union's submission. The union argues that the employer's position amounts to requesting a change to a major provision of the collective agreement, when there was no agreement to do so. The union invites an emphasis on the context of a two-year long arbitration moratorium, which created pent-up demand for classifications upward. The union submits that the substance of the dispute on the merits was the job duties, and that is the only thing ruled on in the decision on the merits. It is their position that the job duties were continuous, but the new starting point is March 1, which was the first the grievor was able to dispute the evaluation of his job since September 2005, the beginning of the moratorium on classification grievances. In the union's view, although the exact date when the job became worth more cannot be determined, that date is not March 1, the grievor being of the view that he had been underpaid for years before. The union asserts that the process took its course, and as of March 14, when he grieved, the grievor declared that he did not agree with where he was - that what is being corrected is the grievor's ranking, and the only question is when that is recalculated from. It is the union's view that it does not matter how the grievor got to where he was on the grid when he grieved. Further, the union maintains that to find for the employer words such as "as if the initial assessment had not happened" would have to be added to the collective agreement or the e-mail exchanges, as well as changing the face of the grievance, because he did not dispute the conversion process. In particular, the written record of the agreement makes no mention of the "make whole" concept in the way in which Ms. Wilson recalls it. Rather, it says the union will recommend putting classification grievances on hold pending review with retroactivity to March 1. The collective agreement picks the date of the grievance as the point of reference; the union says it agreed to go back to March 1, not February 28. Therefore, the appropriate context for a "make whole" award is within the new system, rather than reaching back into the old system to re-do the conversion, in the union's view. As noted above, there is no dispute that the local parties agreed on retroactivity to March 1. The live question is whether it meant that any re-evaluation would be implemented as if the new rating had been the initial rating on the implementation date of March 1. As noted, the representatives of the two parties who gave evidence, neither of whom lack credibility, describe the agreement differently. For instance, Ms. Wilson expressed two very specific points which are not referred to in the e-mails, or recollected by Ms. Fordyce. One is that the implementation guidelines would be used and that Ms. Fordyce used the term "made whole", specifying that she meant "as if it was the correct way in the first place". Ms. Fordyce was insistent that she only agreed to what was set out in the March 23 e-mail. Quite apart from the central disagreement as to whether the implementation rules would be used, there is nothing in the evidence from either party that suggested they discussed or agreed what 10 would happen if the College did not make any changes to the rating as a result of the internal review, and the matter went to arbitration, as occurred in Mr. Savoie's case. Rather, Ms. Wilson's testimony was that her understanding, as a result of her discussion with Ms. Fordyce, was that any retroactivity as a result of the review process (my emphasis) would be retroactive to March 1, and that it would be as if the College had erred and was implementing it from the beginning of the transition. The theme that what Ms. Wilson had in mind was salary adjustments flowing from re- evaluations that were a result of the internal review is reflected in the wording of the August e- mails as well. In her August 10 e-mail.Ms. Wilson is again focussing on review by the College, referring to the finalization of the review by Human Resources, and says if there are any evaluation rating changes resulting in a compensation adjustment, the salary adjustment will be retroactive to March 1. Ms. Fordyce's e-mails and evidence did not have the same emphasis on the results of the internal review process as the trigger for retroactivity to March 1. Her statement of the agreement in her March 23 e-mail focuses on putting the grievances on hold, pending the College's review, in exchange for a March 1 retroactivity date. Her request for clarification in August is simply focussed on requests for review or grievances filed before September 1 being retroactive to March 1, and Ms. Wilson confirmed that that was the correct interpretation of her August 10 e- mail. Those e-mails confirm that the local parties were agreed at least on that: grievances filed before September 1 would have a March 1 retroactivity date. It is notable that Ms. Wilson's response neither limits the retroactivity date to re-evaluations done by the College internally, nor specifies that retroactivity means retroactive re-doing of the transition according to the implementation rules. Thus, I do not find that Ms. Wilson made implementation retroactivity a condition of agreement on the March 1 retroactivity date. Nor is there any evidence that Ms. Fordyce made her interpretation explicit or a condition of the agreement, or discussed with Ms. Wilson what it meant to apply Article 17.2.1 effective the same date as the provincial parties had agreed to bring in the new system, which required the use of the implementation guidelines. I note that neither side argued that these various strands of their positions were so intertwined that I should find that, without them, there was no agreement to March 1 retroactivity. It can readily be seen that the local agreement lacked the formality of the collective agreement or other provincially negotiated documents pertinent to the job classification system, and at least in the employer's view, was part oral and part written. Many agreements, formal or informal, oral or written, result from conversations in which ideas are floated and discussed before parties commit to the final agreement. One difficulty in this case is determining whether the discussions Ms. Wilson recalls form the core of the agreement, despite the fact that the points in issue do not appear in writing by either party. Part of the relevant context is that the period in question was 11 one of intense activity for both parties, involving many questions and concerns about the new system from affected people as well as many grievances to deal with. It is the type of situation in which it would be quite common for each side to be focussed on different aspects of the arrangement for grievances raised within the review period, and to be under the sincere impression that the other side shared one's views, and for things not to be documented with the precision usual in formal negotiations. In any event, it is very clear that the local agreement was of mutual benefit to both parties so they could see if the concerns about the new job descriptions and ratings could be cleared up without resort to the formal grievance process and arbitration, with all its attendant time and expense, regardless of which interpretation of retroactivity was adopted. The e-mails form the only written record of the local agreement, and in the above context, I find the writing to be the best evidence of the agreement. It can be seen that, as of March 23, the union is not providing agreement to all the details referred to in Ms. Wilson's testimony above. It could be said that it does not even describe a completed agreement of any kind because it states that written agreement from the College is required or the union will reconsider its advice to its members. I am nonetheless persuaded that the parties had at least agreed on two central aspects of what was set out in that e-mail - i.e. the union would recommend putting grievances on hold pending a review by the College, and retroactivity would be back to March 1 - as they conducted themselves in that fashion, and each side referred to those points in their August e- mails. By that time, the parties had also agreed that August 31 would be the end of the period for receipt of concerns or grievances subject to the March 1 retroactivity date. It is interesting, but in the end inconclusive, that Ms. Fordyce and Ms. Wilson expressed their agreement in different ways at different times. In the March 23 e-mail, the union's representative expressed this as "retroactivity is to March 1, 2007". By contrast, in her August 10 e-mail to managers, Ms. Wilson wrote: "If there are evaluation rating changes resulting in a compensation adjustment, the salary adjustment will be retroactive to 1 March." When Ms. Fordyce responded with her concerns, she expressed the agreement in terms which are capable of interpretation as if the grievance itself, rather than just the pay adjustment is retroactive to March 1, and in an emphasis stressed by the employer as consistent with its position, used the words "retro to the initial March 1" (emphasis added). But even this exchange leaves the agreement ambiguous, and does not make out a clear agreement to the use of the implementation guidelines and/or Article 17.2.1 as part of the March 1 retroactivity date, or as to which wage rate would be used as the starting point for the computation - the rate in the old system, or the new. In the end, I find that the local agreement, even in light of the extrinsic evidence concerning the intentions and discussions of Ms. Wilson and Ms. Fordyce, remains ambiguous. It is capable of bearing either 12 interpretation, but does not explicitly provide for either of the parties' positions, or the details of the mechanism of how retroactive pay would be calculated, at all, or if the matter had to go to arbitration despite the review period. On the evidence, each party appears to have sincerely expected something different out of the arrangement, a situation that has been called a conflict of expectations in cases such as Re Ontario Jockev Club And Mutuel Emolovees' Association, Service Emolovees' International Union, Local 528 (1980) 28 LAC. (2d) 14 (Carter). In the circumstances, the phrase "retroactive to March 1" is, despite its apparent simplicity, ambiguous, and difficult to apply in the context of the transition to the new system on March 1. The arbitral task is then to choose the interpretation which makes the most harmonious sense of the parties' agreement in all the circumstances, which include the collective agreement and implementation rules, keeping in mind that the context is the remedial one, flowing from the December 8 award. It is appropriate to review the situation as a whole and how each of the two proposed solutions would operate in this light. It can be seen from the letter of understanding containing the implementation guidelines, set out above, that every job was to be re-evaluated using the new job evaluation tool, and to see where it fit on the paybands in the new system, in time for the effective date of March 1, 2007. Each party made reference to the date of February 28 in evidence and argument. For instance, Ms. Fordyce asserted that this was when the transition to the new system happened, and Ms. Wilson used it to explain what rate was used as the starting point when they implemented the new system in general, as well as the award on the merits. It is important to note that there is no mention of February 28 in the implementation guidelines, yet both parties understood the transitional rules to mean that the initial general implementation was intended to be done by using the employee's rate as of February 28 as the reference point from which to find the first level in the new pay grid which provided an equal or greater hourly rate. Thus, it is clear to me that the parties understood the words "current hourly rate" in the Letter of Understanding setting out the implementation rules as referring to the rate in the old system, i.e. the February 28 rate. The analogous comparator is the "former rate" in Article 17.2.1, also set out above. There is no evidence that there was any discussion or understanding about the meaning of the term "former rate" from Article 17.2.1when calculating retroactivity back to the same date as the implementation of the new system. There were 15 numbered paybands in the old system, whereas in the new one, there were only 12, A to L. Structurally, then, there was not a one-to-one correspondence between the paybands in the two systems, and effective March 1, all the support staff bargaining unit jobs were repositioned into the smaller number of paybands. Simultaneously, the continuing jobs took on 13 both a new point rating and Payband in the new system, with the position on the new pay grid being chosen to make sure there was no loss compared to the former pay grid. However one thinks of the timing of the re-evaluations themselves, which clearly had to be developed prior to March 1, nothing new was in place on February 28. All aspects of the transition had to be assembled to be ready prior to March 1, but they were only effective on March 1. On February 28, no support staff bargaining unit job was being paid under the new system; on March 1, no job was being paid in the old system. This is the product of the provincial parties' agreement, just as much as Article 17.2.1. It is also notable that whether one chooses to look at the problem through the lens of the implementation rules, which the parties understood to use the rate as of February 28 as part of the formula for the March 1 implementation, or the method for transitioning to a new pay band on a re-evaluation described in Article 17.2.1, one has to determine what rate to start with in calculating retroactivity, and in our context, depends on how one thinks of the sequence of events of March 1 for this purpose, a problem which could not arise on any other retroactivity date. I note that there is no viable way to apply Article 17.2.1 simultaneously with the implementation rules for transition to the new grid, because they produce different salary effects. Rather, it is necessary to choose between the two positions. The union's position requires the sequential, accumulative, application of both sets of rules - the implementation rules as originally applied to place the grievor at Payband G and then the rules under Article 17.2.1, so that the remedy for the grievance occurs after the transition to the new system is completed. The employer's solution rectifies the under-valuation of the job in the context of the transition and remedy in one simultaneous equation. Neither solution is entirely satisfactory, either to the other party, or on general principles. The College's solution offers less in this particular grievor's circumstances, and perhaps those of a few others, than if the local agreement to a common retroactivity date for review period grievances, entered into by the union for the benefit of the bargaining unit as a whole, had never been made. And it appears to be common ground that, but for the local agreement, the collective agreement would apply in the manner for which the union argues. On the other hand, the union's position has the problem of creating effects that are not obviously intended by any of the contractual language of two wage increases, or a two-stage wage increase, effective the same date, producing more compensation for a re-evaluation to the correct Payband than if the evaluation had been done correctly on that date in the first place. I return to the fact that, for the purposes of this decision, my task is a remedial one, a framework which in the end, in my view, provides the most appropriate resolution to this dispute. I am 14 charged with resolving a dispute between the parties as to how to implement the award on the merits, which is basically a question of fashioning a contractual remedy. The traditional approach is to go back to the point at which the performance of the contract was not as it should have been, to fashion a remedy which will put the aggrieved party in the position he would have been if the contract had been performed correctly in the first place, to the extent that it is possible to do so financially. The language of the collective agreement, which sets out provisions specific to classification grievances, does not dictate the date for measuring the undervaluation of the job. This may be an implicit acknowledgment of the problems inherent in knowing at what point a job becomes under-classified, but it is not necessary to speculate. Rather, the parties have specified the outside retroactivity date as the date of the grievance, so that the earliest one can receive the usual remedy of retroactive pay is the grievance/retroactivity date, regardless of when the breach first occurred. For all practical purposes, that would likely mean that the undervaluation would be measured as of the retroactivity date, which is also the date of the grievance. That approach was modified by the local agreement here in issue to the extent that retroactivity was agreed to extend back to March 1,2007, also simultaneously the implementation date for the new system and the first date classification grievances could be filed after the moratorium. Although the union suggested in argument that Mr. Savoie's job had probably been undervalued for a significant period before March 1, I am not persuaded that there was any agreement, or other sufficient reason, to pick a different date from the retroactivity date as the date at which the breach should be considered to have occurred. More importantly for this decision, there was nothing before me that would warrant considering the breach any later than March 1 in the particular facts of Mr. Savoie's case. In the result, I find it appropriate to measure the appropriate remedy as of the agreed retroactivity date of March 1, 2007. The question is then how one puts the grievor back in the position that he would have been in if the contract had been performed correctly on March 1 in the first place. I have no hesitation in coming to the conclusion that the natural response to that question is that the grievor would have been evaluated at Payband H as of the implementation of the new system, and placed directly into Payband H, at the outset of March 1, according to the implementation guidelines. This would engage the formula derived from those guidelines, which would mean the grievor's Payband 10 rate was the figure that had to be matched or exceeded when deciding where he should be placed. The remaining question then becomes whether the parties' local agreement, or the collective agreement, requires a different approach. From the above discussion, it can be seen that I am not persuaded that the ambiguous local agreement does, as it stopped short of agreement on such details. 15 As to whether the collective agreement requires a different result, the thrust of the union's argument was that Article 17.2.1 is the operative clause, and that it should be applied to the March 1 pay grid, as in any ordinary classification grievance, given that the grievance does not complain about the conversion process, just about the grievor's classification in the new system. The March 14 grievance reads as follows: STATEMENT OF GRIEVANCE I am improperly classified as a Payband level "G". SETTLEMENT DESIRED I should be classified as Payband level "J" with retro pay, benefits, bumping rights and seniority retroactive to March 1, 2007. Change of Class Title from "Intermediate Accountant" to "Accountant". It is true that the grievance does not complain about the conversion process directly, but being at Payband G on March 14 was a direct result of the recent re-evaluation that was an integral part of the implementation process. For remedial purposes, I do not accept the union's submission that it does not matter how the grievor got to Payband G, because fashioning a remedy is about correcting how something went awry in the first place. I also note that the grievance on its face requests retroactivity to March 1, 2007, rather than March 14 retroactivity which would have flowed from the ordinary operation of the collective agreement. In any event, as discussed above, I have found this retroactivity date to be part of the parties' local agreement, and this would be the case regardless of what was being asked for in the grievance. In my view, the salient fact about taking retroactivity back to March 1 is that the parties have taken it back to the one day that is clearly not an ordinary re-evaluation day. Rather, it was the switch over day. I am persuaded, on all the material before me, that the main thrust of the provincial parties' intention for that day was that jobs be put on the March 1 grid correctly according to the new evaluation tool and the implementation guidelines, and I do not find the ambiguous local agreement sufficiently clear to override that. Further, and although I accept that it is not impossible to apply both the implementation rules and the rules under Article 17.2.1 effective the same date, as I am urged by the union to do, I find no basis in any of the material to find that the parties contemplated applying both sets of rules effective the same date. More importantly for the purpose of this decision, I do not find enough in the situation to warrant a finding that that is the best remedial result or the preferable interpretation of the parties' ambiguous agreement in the circumstances. There is a direct conflict between the implementation rules and Article 17.2.1, if one tries to apply them simultaneously, and there is no direction in either the implementation guidelines or Article 17.2.1 on how to 16 sequence them effective the same day. Where there is conflict or inconsistency between two contractual provisions, the applicable rule of contract interpretation is that the more specific rule applies over the general. Since the implementation rules are applicable only to March 1, they are properly considered more specific than the general rules set out in Article 17.2.1. More basically, as noted above, I do not find a good remedial reason in this case to consider the breach to have occurred after March 1. Moreover, when remedying the breach as of March 1, I do not find sufficient reason to find that the language of 17.2.1 means that the breach or the correct re- evaluation should be deemed to have occurred sometime later on March 1, after the conversion to the new system, rather than as part of it. If the corrected re-evaluation is considered to have occurred as part of the conversion process, it is clear that the implementation guidelines are the ones the parties intended to apply, and any conflict with Article 17.2.1 or any other provision of the collective agreement is avoided. In the result, in the circumstances before me, I do not find that the collective agreement, including Article 17.2.1, requires the union's argument to be accepted. I have also considered the point raised in the union's evidence that if they had wanted to extend the implementation period, they would have had to do what the provincial joint Classification Review Committee (CRC) suggested to the local parties, being drafting a memorandum of agreement for a pre-grievance appeal process. Although it is readily apparent that a formal memorandum of agreement was not developed, and that the local parties referred to the period as a review period, rather than an appeal process, the terms on which the local parties did unequivocally agree are at the core of the process suggested by the provincial parties, i.e. waiving the time lines, and providing specific deadlines. So, if those points are equivalent to extending the implementation period, and extending the implementation period means applying the implementation guidelines, one could say that the local parties accomplished that result. Nonetheless, the memo from the provincial parties says nothing about how retroactivity would be calculated, or the remedial implications of changing the retroactivity date from the grievance date, so this is not determinative of the remedial point here in issue in any event. As well, I have carefully considered the impact of the fact that March 1 was the first day after the moratorium on grievances which had been in place since September 2005, which was stressed by the union as an important part of the context in which the local agreement should be interpreted. This was an important milestone as well, but it is more procedural than substantive, and thus I do not find it as weighty a consideration in the overall remedial context as the other elements discussed above. * * * 17 In sum, it is my view that the best way to put the grievor back in the position he would have been if he had been classified correctly is to fashion a remedy as of March 1, the locally agreed retroactivity date. In this context, I am persuaded, for the reasons set out above, that the more harmonious application of the local parties' ambiguous agreement to March 1 retroactivity is to correct the grievor's classification as part of the implementation of the new system. In the result, I do not find that the employer's implementation of the award was incorrect, or in breach of the collective agreement. I will continue to remain seized to deal with any further problems in the implementation of the award on the merits which the parties are not able to resolve themselves. Dated at Toronto this 19th day of April, 2010. Original signed by Kathleen G. O'Neil Kathleen G. O'Neil, Single Arbitrator 18