HomeMy WebLinkAboutArcher et al 06-11-10
'. .
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Unionll)
- AND -
MUNICIPAL PROPERTY ASSESSMENT CORPORATION
(the II Employer" )
AND IN THE MATTER OF INDIVIDUAL GRIEVANCES CONCERNING PAY RATE
SOLE ARBITRATOR
Robert D. Howe
APPEARANCES
For the Union
Steve Lavender, Grievance Officer
Ivan Herrington
For the Employer
Robert Little, Counsel
Greg Volkes
A hearing in the above matter was held in Toronto, Ontario on
November 3, 2006.
AWARD
This award pertains to seventeen individual
grievances regarding pay rate, all of which arose out of a
corporate reorganization (known as the nFutures transitionl1)
of the Municipal Property Assessment Corporation (also
referred to in this award as the "Employer 11 and the
nCorporation", for ease of exposition). The cooperative
efforts of the parties' representatives enabled the case to
proceed expeditiously on the basis of agreed facts and
evidentiary stipulations.
A Letter of Understanding (the "LOU") regarding the
reorganization is appended to the parties' January 1, 2003 to
December 31, 2005 collective agreement (the nCollective
Agreement"). That LOU provides, in part, as follows:
This will confirm certain understandings regarding
arrangements to complete the corporate reorganization
and assist employees who may be affected by the
reorganization.
1. It is agreed that, subject to paragraph 4,
employees in the bargaining unit who, at the date
of ratification, are surplus to the Corporation'S
requirements as a result of the reorganization,
are subject to the provisions of this letter.
2. On or about the tenth (lOth) working day following
ratification of the Collective Agreement, the
Corporation shall deliver a notice of layoff to
the employees described in paragraph 1.
[Paragraphs 3 and 4, which pertain to the advertising
and filling of vacancies, and the effect of "factor 80"
retirements, have been omitted as they are not germane
to the grievances.]
5. Within fifteen (15) calendar days of delivery of
the notices referred to in paragraph 2, the Corporation
shall assign, pursuant to Article 13.07 of the
1
Collective Agreement, as many of the affected employees
as possible to vacancies as prescribed in the article.
It is agreed that any such employee who is assigned to
a position within a classification having a lower
maximum rate shall have his or her former rate of pay
maintained for a period of twelve (12) months. After
twelve months, if the employee is still assigned to the
lower paying position, their rate of pay shall be
reduced to the appropriate rate of pay for the
position. . . ,
[That paragraphls final sentence (which pertains to
recall rights) has been omitted, as have the remaining
seven paragraphs of the LOU, as they are not germane to
the grievances.]
The agreed facts and evidentiary stipulations are
contained in a written exchange of the parties' respective
positions lion what should have occurredll.
In the following
quotation, the evidentiary stipulations have been italicized
to differentiate them from the agreed facts.
Agreed Facts and Evidentiary Stipulations
from the Employer's Position
1. Effective March 21, 2003, approximately 68
employees, who had received notices of layoff,
were assigned pursuant to paragraph 5 of the
Letter of Understanding (LOU) to positions within
a classification having a lower maximum rate than
the employees' original position.
PA3 to PA2 - 33
PA4 to PA3 - 6
PA4 to PA2 - 3
DRA3 to PA2 - 2
DRA2 to PA2 - 16
AD10 to PA4 - 4
AD10 to AD8 - 1
AD8 to AD7 - 1
AD8 to AD6 - 1
AD7 to AD6 - 1
Total 68
2. Seventeen of these employees have filed
grievances.
3. Nine of the grievors were drafters in
classification code DRA2 under the
2
Collective Agreement.
4. Seven grievors were property assessors in
classification code AD10 under the Collective
Agreement.
5. One grievor was a Senior Clerk in classification
AD10 under the Collective Agreement,
6. The grievors were all at or near the top rate in
their classification except Lincoln Pearce.
7. For the drafters, the top rate (Step 5) was $22.06
per hour. For the PA3's, the top rate (Step 5)
was $28.40, For the Senior Clerk, the top rate
(Step 5) was $22.80 per hour.
8. As part of the "Futures" transition, the grievors,
except the Clerk, were placed in the position of
property inspectors PA2 on March 31, 2003. The
Clerk was placed in AD8.
9. The grievors' rate of pay was maintained pursuant
to paragraph 5 of the LOU for 12 months.
10. At the end of that 12 month period, the employeesf
rate of pay was reduced to the next highest rate
of pay in the classification into which they had
been placed. For the grievors:
(a) the Drafters 2fs whose rate had been
maintained at $22.06 had their rate reduced
to the [next] highest PA2 rate, i.e" $21.65;
(b) the PA3's who had been maintained at $28.40
had their rate reduced to the next highest
PA2 rate, i.e., $23.00i
(c) the Senior Clerk had her rate maintained at
$22.80 and, after 12 months had that rate
reduced to the next highest AD8 rate, i,e.,
$21.15.
11. With respect to anniversary dates, the Collective
Agreement only makes reference to anniversary
dates in Article 12.10, Article 26.14, and in the
wage schedule note on page 41. That anniversary
date may change pursuant to Article 12.10. On the
employee's anniversary date, management may
advance the employee to the next step on the Wage
Grid. Once an employee has reached the top of the
wage grid, the employee's anniversary date no
longer exists. With respect to Article 26.14, it
applies to employees who have not reached the top
3
of the wage grid; still have an anniversary date;
and are then demoted.
[The parties have stipulated that the italicized
portion of this paragraph constitutes evidence the
Employer would leadl about which the Union would
have no contrary evidence.]
12. In this easel as certain employees were
placed a step below the maximum of their new
classification, the Company created new
anniversary dates for those employees of April 11
2005. Anniversary dates always start at the
beginning of the next month. In this case, the
Employerls view was thatl as the reduction in pay
did not occur until March 24, 2004, it was
appropriate for employees to stay at that step on
the grid for one year before being eligible for
consideration for advancement on the grid,
[The parties have stipulated that the italicized
portions of this paragraph constitute evidence the
Employer would lead as to its rationale for
setting the new anniversary datel and have further
stipulated that the Union would lead evidence that
the Union did not agree that it was appropriate.]
13, The only exception was Lincoln Pearce who had not
been at the top of his salary grid and so he kept
his anniversary date which had been April 1.
[Paragraph 14 has been omitted, as it is common ground
between the parties that it is a statement of the
Employer's positionl rather than an agreed fact or
evidentiary stipulation,]
There are three categories of grievances: PA3's,
an AD101 and Drafters. The agreed facts from the Union's
position all pertain to the third category.
Agreed Facts from the Union's Position
1. The grievors were Mapper/Drafters in
classification code DRA2 under the collective
agreement.
2. The grievors were all at or near the top rate in
their classification (step 5) which was $22.06 per
hour.
3. As part of the "Futures" transition the grievors
were placed in the (then) lower-rated position of
Property Inspectors PA2 in approximately February
2003.
4
4. The grievors' pay rate was maintained pursuant to
paragraph 5 of the Letter of Understanding Re
Corporate Reorganization appended to the
collective agreement.
6. On January I, 2004 the pay rate of step 5 of the
PA2 classification passed the pay rate that was
maintained by the Letter of Understanding for the
Drafters.
[Paragraphs 5, 7, 8, and 9 have been omitted, as it
is common ground between the parties that they are
statements of the Union1s position, rather than agreed
facts or evidentiary stipulations.]
also referred to the following provisions of the Collective
In addition to the LOU, the parties I representatives
Agreement during the course of their submissions:
1.02
4.01
This Agreement sets forth the entire Agreement
on rates of pay, hours of work and other
conditions of employment. Amendments to this
Agreement may only be made in writing on the
agreement of both parties. There are no
representations, warranties or conditions that
affect the rights of the parties and employees,
save and except those specifically set out in
this Agreement.
The Union acknowledges that it is the exclusive
right of the Employer to:
(a) maintain order, discipline and efficiencYi
(b) hire, transfer, classify, assign, appoint,
promote, demote, appraise, train, develop,
layoff and recall employees;
(c) discipline and discharge employees for just
cause, except that probationary employees
may be discharged without just causei
(d) generally to manage the enterprise in which
the Employer is engaged and without
restricting the generality of the
foregoing, the right to plan, direct and
control operations, facilities, programs,
systems and procedures, direct its
personnel, determine complement,
organization, methods and the number,
location and classification of personnel
5
required from time to time, the number and
location of operations, buildings,
equipment and facilities, the services to
be performed, the scheduling of assignments
and work, the extension, limitation,
curtailment or cessation of operations and
all other rights and responsibilities not
specifically modified elsewhere in this
Agreement.
4.02 The Employer shall exercise the above rights in
a manner consistent with the expressed terms of
the Collective Agreement.
10.21 The Board of Arbitration or sole arbitrator
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.
12.10 Where an employee is promoted, a new anniversary
date is established based upon the date of
promotion.
26.14 Except as provided in 26.13, an employee who is
demoted shall be paid at the rate closest to but
less than the rate he or she was receiving at
the time of the demotion, effective from the
date of his/her demotion. For greater
certainty, an employee will retain his/her
anniversary date if placed in a step below the
maximum of the position to which he or she is
assigned.
Summary of the Union's Position
The LOU is a complete code as to how employees
displaced or assigned to another job as a result of the
reorganization are to be treated, so Article 26.14 does not
apply to them.
In the absence of the LOU, the Drafters, who
as of January 1, 2003 Were being paid at the $22,06 top rate
6
anomaly which derogates from the very protection which the red
circling was supposed to provide. As a result of what the
Employer did, the Drafters were worse off than they would have
been if their wages had immediately gone down to $21.66 at the
time of their demotion. If that had occurred, their wages
would have risen to $22.31 as of January I, 2004, and they
would not have ended up being paid at the rate of $21.65 at
the end of the twelve-month period and being a year behind in
their step increases. It cannot have been the parties!
intention that a clause intended to benefit employees would
have the absurd result of leaving them worse off than they
would have been without the clause. Paragraph 5 of the LOU
must be read as a provision intended to protect employees who
were being demoted in the corporate reorganization. If the
approach advocated by the Union is adopted, there is still a
reduction because if the Drafters had not been demoted, their
wage rate would have increased from $22.06 to $22.72 on
January 1, 2004. Thus, the $22.31 wage rate that the Union
argues they should have been paid as of that date would still
be a reduction from what they would otherwise have been
earning.
Changing the grievors! anniversary dates is also
objectionable. The anniversary date or review date is the
date an employee is hired. The only language in the
Collective Agreement which talks about changing an anniversary
date is Article 12.10, which says that a new anniversary date
is established upon the date of an employee's promotion.
8
Consequently/ under the inclusio unius est exclusio alterius
principle of interpretation/ a new anniversary date is not
established upon the date of an employee's demotion.
Accordingly, the grievors' anniversary dates should have
remained unchanged. Article 1.02 cuts both ways. There is
nothing in the Article 4 management rights clause that
expressly gives the employer the right to set an anniversary
date. If the Employer wanted to have that right, it would
have to bargain it. The Union's alternative position is that
if there was to be a new anniversary date/ it should have been
the date of demotion/ by analogy to Article 12.10. There is
no evidence that the Employer has ever denied an employee an
anniversary date advancement on the grid. The Union's
evidence would be that this has never occurred.
The authorities relied upon by the Union are Re Grey
County Board of Education and Ontario Secondary School
Teachers' Federation/ District 23 (1983), 12 L.A.C. Od) 412
(Teplitsky) i Canada 3000 Inc./ Re Inter-Canadian (1991) Inc.
(Trustee of)/ 2006 SCC 24 (CanLII)i Sullivan and Driedger on
the Construction of Statutes (4th Ed.) at pp, 9-11i Re Toronto
Catholic District School Board and O.E.C.T,A, (Toronto
Elementary Catholic Teachers) (2000)/ 88 L.A.C. (4th) 34
(Marcotte) / quashed 138 O.A.C. 330 (S.C.J. (Div. Ct.)) /
reversed 55 O.R. (3d) 737, 49 O.A.C. 328 (C.A.) i Re Baycrest
Centre for Geriatric Care and O.P.S.E.U., Local 583 (1989) I 16
C.L.A.S. 45 (Mitchnick); and Re Overlander Extended Care
Hospital and B.C.N.U. (2002), 105 L.A.C. (4th) 310 (Germaine).
9
Summary of the Employer's Position
The grievances must be placed in perspective. The
LOU was a bargain reached by the parties in the context of a
major corporate reorganization. The Employer made concessions
which ensured that a number of employees got jobs, and which
also ensured that employees assigned to positions within a
classification having a lower maximum rate would have their
former rate of pay maintained for a period of twelve months.
A total of 68 employees who received notices of layoff were
assigned to positions having a lower maximum rate than the
employees' original positions. Some of those employees
derived a huge benefit from paragraph 5. The PA3's, for
example, had their pay rate maintained for twelve months at
$28.43 instead of falling to $21.66. It also provided a net
benefit to the Drafters, as they were paid more than the
target position rate for nine months and were only paid less
than the target position rate for three months. In any event,
the quantum of the benefit does not drive the language; the
fact that it did not benefit the Drafters as much as it
benefited some of the other employees does not provide a
rationale for allowing the grievances. The bargain negotiated
by the parties must be respected on its strict wording. The
language bargained by the parties should not be distorted
because one subset of the Drafters is unhappy with the result.
The Employer is not required to do more than it bargained.
It is unnecessary to consider whether ured circlingU
has a defined meaning or purpose as that is not the term used
10
in paragraph 5 of the LOU. The bargain set forth in paragraph
5 is that an employee who is assigned to a position within a
classification with a lower maximum rate shall have his or her
former rate of pay llmaintained" for a period of twelve months.
The word Umaintainedll does not mean lIincreasedll. Achieving
the result the Union is seeking would require different
language, such as "maintained for a period of twelve months or
until the rate of the lower paying position surpasses the
employee's former rate of payll. What happened here was
entirely foreseeable and predictable, as all of the pertinent
wage scales were known by both parties at the time paragraph 5
was drafted. If the Union wanted to achieve a different
result, they needed to negotiate different language.
Paragraph 5 of the LOU also specifies what is to
happen at the end of the twelve months. It states that if the
employee is still assigned to the lower paying position, the
rate of pay will be llreducedn to the appropriate rate of pay
for the position. Paragraph 5 maintained the Drafters' rate
of pay at $22.06 for twelve months. At the end of that period
their pay rate was reduced to $21.65, which was the next
highest PA2 rate. The Union's contention that it should
instead have been increased to $22.31 is inconsistent with the
bargain the parties struck in paragraph 5.
Apart from Article 12.10, the Collective Agreement is
silent about how an anniversary date is established, what an
anniversary date means, and when an anniversary date ceases to
exist. It is also silent about when and how employees move on
11
the salary grid. Consequently, all of those matters are
within managerial discretion which is not reviewable. In this
case, the Employer created a new anniversary date of April I,
2005 for employees such as the Drafters who were placed at a
step below the maximum of their new classification, because it
was of the view that since their reduction in pay did not
occur until March 24, 2004, it was appropriate for them to
stay at that step on the grid for one year before being
eligible for consideration for advancement on the grid. That
exercise of managerial discretion is not open to arbitral
review. Moreover, even if there were some basis on which it
could be reviewed, it should not be interfered with as it was
entirely reasonable. Although the date of hire or the date of
demotion may also be reasonable, they are no more reasonable
than the date selected by the Employer in the exercise of its
discretion. If the Union wanted some other date, they would
have to negotiate it,
In addition to the definition of "maintain" contained
in the New Shorter Oxford English Dictionary, Employer counsel
referred in support of his client's position to Ontario Public
Service Employees Union and Ontario Property Assessment
Corporation (discharge grievance of Ian Morrison), unreported
award dated December 20, 2000 (MacDowell) j Ontario Property
Assessment Corporation and O.P.S.E.U. (Grievances of Peter
Pirrotta and Matthew Jazenko - temporary employees grieving
competition), unreported award dated March 30, 2001 (Tacon) i
Re Metropolitan Toronto Board of Commissioners of Police and
12
Metropolitan Police Association et al (1981), 124 D.L.R. (3d)
684 (Ont. C.A.) i and DuPont Canada Inc. and Communications,
Energy and Paperworkers Union of Canada, Local 28-0,
unreported award dated September 25, 2002 (Dumoulin).
Decision
The matter to be determined in this case is how the
following two sentences contained in paragraph 5 of the LOU
are to be interpreted:
It is agreed that any such employee who is assigned to
a position within a classification having a lower
maximum rate shall have his or her former rate of pay
maintained for a period of twelve (12) months. After
twelve months, if the employee is still assigned to the
lower paying position, their rate of pay shall be
reduced to the appropriate rate of pay for the
position.
As submitted on behalf of the Union and not disputed
by counsel for the employer, onus does not playa role in a
case of this type since collective agreement interpretation is
a question of law to which no onus is ordinarily applicable
(see Re Grey County Board of Education and Ontario Secondary
School Teachers' Federation, District 23, supra, at page 416).
It is the Union's contention that paragraph 5
provides for a "red circling" which ceases at the end of
twelve months, or earlier if the rate of the target position
equals or surpasses the rate of the source position at any
time prior to the expiry of that twelve-month period. As
indicated in Re Baycrest Centre for Geriatric Care and
O.P.S.E.U., Local 583, supra, at page 3, the way tired
circling" normally works is to preserve a wage rate or benefit
for a "classll of employees by freezing it at a pre-existing
13
level until the collective agreement provides them with a
superior benefit. However, as further indicated on that page
of the award, "[t]he question is, what exactly was it that is
intended to be preserved by that Letter, and it is to the
language of the Letter itself that one must ultimately look in
deciding that question. II In Re Overlander Extended Care
Hospital and B.C.N,U" supra, at page 350, Arbitrator Germaine
wrote, in part, as follows at page 350 in describing the
purpose of a red-circled salary:
, .. It is, as the Union submits, to protect the
employee who loses a higher-rated position. Although
not prepared to take it into account, the majority in
Selkirk [Re Selkirk & District General Hospital and
Selkirk Nurses, Loc. 16 (1998), 69 L.A.C. (4th) 320
(Graham)] agreed the purpose was to "ease the
transition from a higher to a lower category, and to
protect the affected nurses from the adverse
consequences of a sudden drop in pay ... [as well] as
'compensation' for a loss of stature and position"
(p. 330). Alternatively, it is to "provide a measure
of protection to the employee who has been 'displacedf
by the action of the Employer (Re St, Amant Centre and
M,N.U., Loc. 95 (Carter) (January 15, 1999), unreported
award (Hamilton), at para. 52 [summarized in 55
C.L.A.S, 34], ... the precise purpose may vary from
contract to contract.,. .
It is evident from the wording of paragraph 5 of the
LOU that the second sentence of that paragraph was intended to
provide some financial protection to employees who, as a
result of the reorganization, were assigned to a position
within a classification having a lower maximum rate than their
previous position. That sentence provided for their former
rate of pay to be IImaintained for a period of twelve (12)
monthsfl, instead of being reduced to the rate closest to but
less than the rate they were receiving in their previous
14
position, as would normally have occurred in such
circumstances pursuant to Article 26,14 of the Collective
Agreement. Thus, the Drafters who went from the DRA2
classification (which had a Step 5 rate of $22,06 per hour) to
the PA2 classification (which had a Step 5 rate of $21.66)
continued to paid $22.06 per hour, instead of having their
rate reduced to $21.66 per hour. It is the Union's primary
position that when the step 5 rate of the PA2 classification
rose to $22.31 per hour on January I, 2004, they should have
been paid at that higher rate as of that date. However, the
LOU does not contain language which would produce that result.
An example of contractual language which delimits the
operation of such a provision on the basis advocated by the
Union is found in Re Overlander Extended Care Hospital and
B.C.N.U" supra, at page 312:
A displaced employee filling a lower rated position ...
shall continue to be paid at her current rate of pay
until the rate of pay in the new position equals or
exceeds it....
In the instant case, if the parties had intended the
maintenance of the employee's pre-existing wage rate to cease
before the end of the specified twelve-month period in the
event that it was equalled or surpassed by the target
positionts wage rate, they could easily have included language
to that effect in paragraph 5. In the absence of any such
language, the position advocated by the Union cannot be
adopted, as to do so would be to "alter, modify, add to or
amend 'I the Agreementr which is expressly proscribed by Article
10.21.
15
The result advocated by the Union also cannot
legitimately be achieved by implying such a term, as the
Collective Agreement expressly restricts arbitral authority to
do so. See, for example, Ontario Public Service Employees
Union and Ontario Property Assessment Corporation (discharge
grievance of Ian Morrison), supra, in which Arbitrator
MacDowell wrote, in part, as follows at page 6:
Under the Labour Relations Act, a collective
agreement must be "in writing". It is a fairly simple
and straightforward statutory requirement. However,
the parties in this instance have gone farther than
that, and have stipulated, quite explicitly, that it is
the "wri ting - and only the "wri ting" - that is to
govern their relationship. Thus, Article 1.02 excludes
any col~ateral "representations, warranties or
conditions that affect the rights of employeesll other
than those llspecifically set out in this agreementlli
and [what was then] Article 10.20 [now Article 10.21]
specifically limits an arbitrator's authority to
Halter, modify, add to, or amendll any of these
negotiated provisions.
Accordingly, any inclination an arbitrator might
otherwise have to "implyll terms or "read inll llimplied
obligations", must be tempered by the words of the
agreement, which expressly restrict the authority to do
so, This agreement directs the arbitrator to pay
attention to the words that the parties have used, and
it limits arbitral review on any other, or If implied" ,
basis.
See also Ontario Property Assessment Corporation and
O.P.S.E.U. (Grievances of Peter Pirrotta and Matthew Jazenko -
temporary employees grieving competition), supra, in which
Arbitrator Tacon affirmed the reasoning in Arbitrator
MacDowellfs decision, describing it (at page 15) as
"persuasive and helpfulll.
The Union'S alternative position is that the Employer
should have increased the Drafters' rate of pay to $22.31 per
16
hour at the end of the twelve-month maintenance period. In
support of that position, the Union's representative submitted
that $22.31 was the "appropriate ratell within the meaning of
the third sentence of paragraph 5. However, that sentence
indicates that if the employees are still assigned to the
position after twelve months, "their rate of pay will be
reduced to the appropriate rate of pay for the position" (my
emphasis). Thus, the lIappropriate rate of payll within the
meaning of that provision cannot be an increased rate; it must
be a reduced rate. The IIRegular Hourly Ratesll set forth in
the wages appendix (Appendix A) to the Collective Agreement
for the PA2 classification for the year beginning January I,
2004 are:
$19.28 $19,82 $20.41 $21.00 $21.65 $22.31 $23.00 (new)
Since the rate which had been maintained for the Drafters
during the twelve-month period was $22.06, the Employer
complied with the requirements of paragraph 5 when it reduced
their rate to $21.65, which was the next highest rate for that
classification.
The Union also objects to the Employer's creation of
April I, 2005 as a new anniversary date for those employees.
It contends that their anniversary date should have been
either their date of hire or their date of demotion. However,
the evidentiary stipulation contained in paragraph 12 of the
IIEmployer's Positionll, which has the legal effect of
uncontradicted evidence, indicates that once an employee has
reached the top of the wage grid, the employee's anniversary
17
date no longer exists. All of the grieving Drafters except
Lincoln Pearce were at the top of the DRA2 wage grid at the
time of their demotion.
(Mr. Pearce, who was not at the top
of the DRA2 wage grid, retained his April 1st anniversary
date.)
As indicated above, Article 26.14 provides:
Except as provided in 26,13, an employee who is
demoted shall be paid at the rate closest to but
less than the rate he or she was receiving at
the time of the demotion, effective from the
date of his/her demotion. For greater
certainty, an employee will retain his/her
anniversary date if placed in a step below the
maximum of the position to which he or she is
assigned.
However, it is common ground between the parties that Article
26.14 does not apply to any of the grievors, as none of them
was ~paid at the rate closest to but less than the rate he or
she was receiving at the time of the demotion, effective from
the date of his/her demotionll, having each had their former
rate of pay maintained for a period of twelve months pursuant
to paragraph 5 of the LOU. It is also common ground between
the parties that the only other references to anniversary
dates in the Collective Agreement are found in the wage
schedule note which indicates that II [t]here shall be annual
review dates for all classifications except PAl and STA1,
which shall have semi-annual reviews~, and in Article 12.10,
which provides that" [w]here an employee is promoted, a new
anniversary date is established based upon the date of
promotion." If the Employer were to have established the date
of their demotion as a new anniversary date for the grievors
18
by analogy to Article 12.10 as the Union contends it should
have done, the result would have been that the grievors' first
annual review in their PA2 positions would have occurred on
the very date on which the LOU's maintenance of their former
rate of pay expired and, unless they were denied a step
increase by the Employer, would have resulted in their pay
being increased from the maintained rate of $22.06 to the PA2
step 5 rate of $22,31. However, that would clearly be
inconsistent with the parties I bargain set forth in paragraph
5 of the LOU, in which it was agreed that a reduction in their
pay would occur on that date. In view of that express
agreement, I have concluded that it was within the Employer1s
managerial discretion under Article 4.01 to set April 1, 2005
as a new anniversary date for the Drafters who were at the
maximum DRA2 rate at the time of their demotion, so that they
would remain at the reduced rate dictated by paragraph 5 of
the LOU for a year before becoming eligible for consideration
for advancement on the PA2 grid.
As noted by Employer counsel during the course of his
submissions, paragraph 5 of the LOU is part of a bargain which
the parties negotiated in the context of a major corporate
reorganization. As part of that bargain, the Employer made
concessions which ensured that a number of employees avoided
being laid off, and which also ensured that employees assigned
to positions within a classification having a lower maximum
rate would have their former rate of pay maintained for a
period of twelve months. Although that fixed period of wage
19
maintenance proved to be more beneficial for some employees
than for othersl its disparate effect on various employees
does not entitle an arbitrator to alter the bargain that was
negotiated by the parties so as to make it more beneficial for
a subset of employees, such as the nine Drafters who filed
grievances against the Employer.
For the foregoing reasonSI the Drafters I grievances
cannot succeed and must accordingly be dismissed. Based on
the submissions made at the hearingl the PA3 and AD10
grievances are also hereby dismissed.
DATED at Burlington, Ontario this 10th day of November, 2006.
~A.~
Robert D. Howe
Sole Arbitrator
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