The URL can be used to link to this page

Home My WebLink About1982-0265.Policy.82-11-08265182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVB BARGAININC.ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievdr: For the Employer: Hearing: Amalgamated Transit Union, Local 1587 (Policy Grievance) ;‘, Crievor and The Crown in Right of Ontario (Toronto Area Transit Operating Authority) Employer K.P. Swan Vice Chairman’ R. Russell , Member F. Collict IMember E.G. Posen, Counsel Barrister and Solicitor E.T. McDermott, Counsel Osler, Hoskin & liarcourt August 6, 1952 c- 2- .’ ;, 1, ‘/. . . The issue .which brings- this ,mattey: to- arbitration is relatively 3. ‘J _ simple, but the coitsctive agreemqnt is.pnfortunately ~bereft of clues to its ;..’ ‘I.. . )“’ approprjate ,resoytion., The grievance. relates ..tq~,~the way in which the ~. ‘; Employer has, calcujated the “anniversary: date;! for. six month and one year : L incre,ases under Schedule. ‘!Av:.of the,~collective agree,ment. The parties are ,<,.~~ ‘I~..’ . . 2 : I . -’ agreed that, in form, the grievance .is a policy grievance only, and that no :._ “L.~., consequential or individual. relief is contemplated. The only remedy asked by the Union is a declaration, and our jurisdiction is therefore limited to granting or,,refu+ng that relief. ,., ,,. . . y ._ ’ / :’ _,. .I- J_. : : -/ .,i~ ,’ ,: The, only provisions of. .the collective. agreement which are . .~ . ;‘,I. .-, -. relevant are fh.e headings set out in Schedules ‘:A”. ,: ,Schedule “A” provides :~ I for-,vage rates effective in.t,he t”o years of,lrhe.coJlective agreement, and 0. consists. of a Jist .of classification titles. b,eside- which are’ arrayed four I _ . 1.. ,. columns of pay rates. Those columns .sr_e.,.headed ~“Start”, “6 ~Months”, ” 1 -7 ear” a~nd -“2 Years!‘.. There ,is ,nothing .in,the collective agreement to assist in the interpretation- of those stark head&gs.. At the hearing, both parties- agreed that we should hear .: .1. extrinsic evidence, specifically evidence, Celating~ to,: the negotiations for . this agreement, which was the first agre.ementrbetwe.en the parties. The .I’- Employer’s evidence was that, prior. TO the.. signing of the collective agreement, there had existed a merit .system.under which discretionary >?i.‘. .: _~. merit increases~ could be awarded until, an em,ploy.ee, reached the maximum ./ : ._ level for that classification. Under that system, the date for awarding i - 3- -.- ‘-. merit increases was the “anniversary date”, which was the first day of the month following an employee’s first day at work, unless the employee started on the first calendar day of the month or the first working day of the month, in’vihich case the anniversary date was the first day of that month; This system is that applied across the Public Service of Ontario, and is set out in the &Manual of Administration issued to government personnel officers. During the course of negotiations, the Union was concerned to replace the system of merit increases with a system of automatic progression through a four level salary grid. The system finally agreed upon is the one set out in Schedule “A” , and it appears that there was considerable discussion during negotiations between the parties about the general issue of progression. On the other hand, it is entirely clear from the evidence before us that there was no discussion whatsoever about the day from which service was to be counted for movement from one to another of the four grid positions. Following the conclusion of the collective agreement, the Employer continued its practice of calculating anniversary dates in accordance with the Manual of Administration, and.then granting increases six months, one year and two years from that date. The Union objected to this practice, and the present grievance arose. The issue before us is, therefore, simply which of the two interpretations is correct. -4- “_ The Union’s argumen: is, based upon the ,plain meaning of the ,. . I .’ .. . words ‘used in,.Schedule, “A!‘, and.,$particular the .yord “Start”, which it _’ ., I_ asserts ~wJ ,m.ean the da&on which one, commences work and not some .z ,.~. , .I ,1 artificially derived day based.upon aI.unilaterai, management practice. The 8~. .: Employer’s argument is ~that. the ,collective agreement must have been 2’ _’ : .‘!’ > - -,‘.-~l concluded in the .context, ofLlfhee, Employer’s .previous practice, and that ,.. :. . ,_. unless express words are used to change the practice, it must be deemed to 1 1 have continued,. ,.Since the eyidence, indicates ‘that responsible members of ., . . .a. ~. . .Z~ J. :‘~- ,I’:.;y the Union bargaining, team.. -knew the anni,ve.rsary date practice, the : ._ ,__ :.I:;:, 2 i, , ‘<. -, ,..I ,,Emplpyer asserts that,,.& not expressly negotiating an alteration in the . r. L .,., _. former,.practice, .i, the Union must ,be bound: by it. .:: i ,_:. .: .- ., _: ,-,.., This is, we think, one of those problems in collective agreement interpretation. that becomes -more difficult .the longer one stares at the language. The parties have’chosen language which is, on its face, clear. : They have chosen to use the word “Start”, and they have done so with their _. ..:.?. eyes open, and in recognition of a past practice in which the words . .~.. . “anniversary ‘date” were used to trigger events in an entirely different system of pay progression. There certainly may be occasions on which the surrounding circumstances may demonstrate first a latent ambiguity in the ~language used, and then a preference for one or another of the possible interpretations which one might give to that, language. This is not, ,‘. however, such a case. The practice which would have indicated ambiguity *. ~ and the Employer’s preferred interpretation is entirely directed to the words “atiiCersary date” and not to the word “Start”. It is impossible, in - ..I . . - 5- our view, to conclude that that practice is referrable to the use of completely different language in concluding the new pay progression system. In the result, the Union’s arguments must succeed, and the pay progression in Schedule “A” must be based upon the actual first day of work for each emplbyee, and the calendar periods set out in the grid in thar Schedule must be calculated from that day. The relief iequested’in this case is only declaratory, and we therefore make a declaration to that effect. As no consequential relief was asked for, there G probably no need for .us to remain seized of jurisdiction in this matter, but we do Y) in case an; ‘difficulties require our funher intervention. DATED at Toronto, Ontario this 8th day of November, 1982. K. Swan Vice Chairman L “I KJLlcur” R. Russell .Llember F. Collict Member /lb