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HomeMy WebLinkAbout1991-1526.Union.95-09-28 ONTARIO EMPL 0 Y~S DE LA COURONNE CROWN EMP&O YEE$ DE L 'ON TARIO GRIEVANCE C,OMMISSION DE SE'R'LEMENT REGLEMENT BOARD DES GRIEFS rSO DUNDAS STREET W/EST° SUITE 2100, TORONTO, ONTAR,rO~ M5G ~Z8 TELEP~ONE/T~L~PHONE: [416) 326-t388 tSO~ RUE OUNDAS OUEST, BUREAU 2~00, TORONTO [ONTARIO). M5G 'lZ8 FACSIMILE/T~'L~COPIE .' (416) 326-1.396 GSB# 1526/91, 1294/9'2 OPSEU# MBC-U474, MNR-U628 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TH~ GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) G~ievo~ - &nd - The Crown in Right of Ontario (Ministry of Natural Resources/ Management Board of Cabinet) Employer BEFORE: W. Kaplan Vice-Chairperson M. Vorster Member F. Collict Member FOR THE H. Law GRIEVOR Counsel Ontario Public Service Employees Union FOR THE - P. Toop EMPLOYER Staff Relations Officer Management Board of C~binet FO~ THE P. Straszynski THIRD PARTIES Counsel Torkin, Manes, .Cohen & Arbus Barristers & Solicitors HE~tRING July 8, 1992 February 4, 1993 May 14, 1993 June 24, 1994 December 16,. 1994 Introduction On August 6, 1991, OPSEU filed a union grievance (the "1991 Grievance") with Management Board of Cabinet alleging a violation of Article 25 of the Collective Agreement. In brief, the union claimed that the employer was improperly calculating the continuous service of a large number of civil servants employed by the Ministry of Natural Resources. The case proceeded to a hearing in Toronto, at which time submissions and arguments were heard, and an agreed statement of fact was introduced into evidence. A number of procedural issues were also raised, and in our decision dated March 18, 1993, we set out in some detail the background to the dispute between the parties, the issues in dispute, and the reasons for our ruling ordering the consolidation of the 1991 Grievance with another grievance filed on July 9, 1992 (the "1992 Grievance"). The merits of these two grievances, both alleging a violation of the seniority calculation provisions of two successive collective agreements, were addressed at a hearing held on May 14, 1993. At that time, the Board heard argument from the parties as well as from two of a large number of the third parties present at the hearing. In the aftermath of that hearing, the 8oard received written representations from Mr. Irv Kleiner, a lawyer at a Toronto law firm who had been retained by one of the third parties, Mr. Mark Reynolds. In his letter, Mr. Kleiner took issue with the sufficiency of the notice provided to Mr. Reynolds and other third parties. The Board was asked to reopen the hearing in order to provide Mr. Reynolds and other third parties with meaningful notice and a real' opportunity to participate. Having received .this letter, the Chair of. this panel of the Board directed the Registrar to send a copy of Mr. Kleiner's letter to union and employer counsel. This was done by letter dated June 16, 1993. By letter dated June 9, 1 993, and by letter dated June ;)1, 1993, both employer and union counsel consented to the reopening of these proceedings in order to ensure that the third parties were not deprived of any possible participatory right. Out of an abundance of caution, and in deference to the wishes of the parties, the Board, for reasons set out in another interim decision dated July ;)0, 1993, agreed to direct the Registrar to schedule the case for rehearing. That rehearing began on June Z4, 1994. For reasons which need not be addressed in this award, only union counsel presented his argument that day. At the Board's direction, the proceedings were adjourned in order to allow Mr. Peter Straszynski, an associate of Mr. Kleiner now representing Mr. Reynolds and a number of the other third parties to call Mr. Brent Gibbs. When the hearing reconvened on December 16, 1994, Mr. Gibbs testified. Employer counsel' then presented his argument, followed by the lawyer representing the third parties. As is customary, the union was given the final right of reply. There is no real dispute about the facts of' this case, and as already noted, they are set out in our earlier award. Very briefly, on behalf of a large number of seasonal employees working for the Ministry of Natural Resources, the Union, in 1990, filed a.grievance. As a result of that grievance a Memorandum of Settlement, also known as the "roll-over agreement," was reached. The settlement provided, among other things, for those employees to "roll-over" into the classified service. The settlement also provided a formula for the calculation of their seniority. The formula provided for a more generous seniority caicul'ation for roll-over employees than for seasonal employees who had won job competitions and in that way entered the classified ranks. In 1991, the union filed a grievance taking issue with the seniority calculation. That grievance, the 1991 Grievance, was filed under the Collective Agreement dated January 1, 1989 to December 31, 1991. In 1992, the union filed an another grievance; the 1992 Grievance, under the new Collective agreement dated January 1, 1992 to December 31, 1993. As already noted, we ordered the consolidation of these two grievances in our earlier award, having reached the conclusion ~ that they raised similar issues of fact and law, and having found that there were a number of other, reasons in support of their consolidation. The union takes the position that the provisions of the 1992-1993 Collective Agreement retroactively readjusted the seniority of the roll-over employees by providing a' new, and common, basis for the calculation of the seniority of all employees. :.The employer takes the position that the Memorandum of Settlement was not affected by the new Collective Agreement, and that being the case, both the Memorandum of Settlement and its results should not be interfered with. When the case reconvened on June 24, 1994, Mr. Straszynski made some submissions to the effect that the case was inarbitrable because the issue to be determined, namely the seniority of the rollover employees, had been finally and fully resolved by the Memorandum of Settlement. As this preliminary objection was so obviously intertwined with the merits of the matter in dispute, the Board ruled that the case should proceed in the 6 normal, way, noting-at the time that this case was not about some settlement document being considered in isolation; rather, the issue that was raised was whether the negotiation of a new collective agreement amended a provision of a previous Memorandum of Settlement. Put another way, there is a simple question to be answered in this case:. On what basis is the seniority of the rollover employees calculated? By the formula set out in the Memorandum of Settlement, or by the provisions of the 1992-1993 Collective Agreement? B.efore turning to the agreed facts, evidence, and submissions of the parties, it is useful, to once again set out the releVant provisions of the two Collective Agreements in issue in this case. ,' Article 25. 1 of the January 1, 1989 to December 31, 1991 Collective Agreement provides: SENIORITY (LENGTH OF CONTINUOUS SERVICE) 25. 1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) from the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a period of unbroken, part-time service in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later.. "Unbroken service" is that which is not interrupted by separation from the public service; "full-time" is continuous employment as set out in the ours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 61.1. Article 25.1 of the January 1, 1992 to December 31, 1993 Collective Agreement provides: SENIORFDY (LENGTH OF CONTINUOUS SERVICE) Effective February 3, 1992, an employee's length of continuous service will accumulate upon completion of a probationary period of not more than' nine (9) months and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) effective January 1, 1992, from ithe date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his full-time employment back to the first break :in employment which is greater than thirteen (13) weeks; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a period of unbroken, part-time employment ,in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later; or (d) effective January 1, 1984, from the date established by adding the actual number of full-time weeks worked by a full-time seasonal employee during his full time employment back to the first break .in employment which is greater than thirteen (13) weeks. "Unbroken service" is that which is not interrupted by separation from the public service; "full-time" is continuous employment .as set out in the ours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 61.1. Effective December 20, 1990, any leaves-of-absence granted under Articles 3.9 and 3.35 shall be included in the calculation of length of continuous service. It is also worthwhile to set out the terms of the Memorandum of Settlement signed by the parties resolving the'1990 grievance: In full and final settlement of the above-captioned grievance, the parties agree as follows: 1. The Ministry shall identify to the Union all Group 3 positions of a least 43 week[s] duration and shall also identify any and all current incumbents. 2. The Ministry shall appoint all of the current incumbents of positions of 43 weeks or longer duration, provided they have completed at least two seasons of employment as a seasonal unclassified employee, or have been incumbent in the position for the last 52 weeks of active employment, to the classified civil service effective the date of this settlement. 3. The Ministry shall calculate each incumbent's length of continuous service as a classified civil servant by crediting each incumbent with seniority accumulated under article 3.20.1 of the collective agreement, to be pro-rated as calendar rather than hourly service, thus providing a calendar date of .continuous service, based upon hours per day on the appropriate schedule. 4. The Ministry shall, upon having implemented paragraphs ?_ and 3 above, apply article 24 of the collective agreement to all incumbents identified under paragraph 2 and these incumbents shall also have the benefit of the job security guarantees provided by the Ministry pursuant to the Deputy Minister's bulletin dated May 21, 1991. .5. The Ministry agrees that positions identified as 43 weeks or longer, but which have no .incumbent who shall be appointed tO the civil service pursuant to paragraph 2, shall be posted in accordance with article 4 of the collective agreement or staffed in accordance with other procedures agreed to by the parties or deleted. Posted positions will contain an area of search allowing applications only from current classified and unclassified staff within the Ministry. 6. The Ministry and the Union agree to appoint an equal number of representatives to a joint committee to resolve anomalies flowing from this settlement where the duration of the position or tenure of the incumbent is unclear or in dispute. The parties further agree that there shall be full disclosure of all relevant information to facilitate this committee's operation. 7. Any dispute that is not resolved by the joint committee under paragraph 6, above, may be advanced by the Union directly to step 3 of the grievance procedure as a means of speeding resolution. 8. The Ministry agrees that seasonal unclassified positions shall not be of 43 weeks or more duration followed by nine or less weeks inactive employment in any twelve-month period. The Union agrees that the positions below 43 weeks per year are properly characterized as seasonal in nature. 9. In the event that the Ministry does not adhere to paragraph 8 above, the provisions of this settlement shall apply. However, the parties may agree mutually to alternative remedies. 10..The Ministry and the Union agree that this settlement shall be communicated to Ministry staff by way of simultaneou~ communications. 11. This settlement shall be made an order of the Grievance Settlement Board after the issuance of the communications in paragraph 1.0 above. 12. The grievance is withdrawn. Agreed Facts Virtually none of the facts in this case are in dispute, and all the relevant facts are set out in our earlier awards. At the commencement of the hearing on' May 14, 1993, there was a dispute between the parties about the employer's request to call bargaining history, evidence. The Board heard lengthy argument from both parties on this point, and ultimately it was decided by the parties that this evidence was not necessary as the parties were agreed that neither the union nor the employer raised either the 1990 Memorandum of Settlement or the 1991 Grievance taking issue with the employer's seniority calculations in the negotiations leading to the signing of the 1992_-1993 Collective Agreement. At the commencement of the hearing on June 2:4, 1994, the Board was advised that the parties had agreed to a number of additional facts, and some evidence was also subsequently led. Additional Agreed Facts 1. The effect of an oVerride on the rollover agreement by the new provision of the Collective Agreement 'would be substantially detrimental to the seniority rights of most employees covered by the Memorandum of Settlement, 2. The Memorandum of Settlement has been implemented from the time of its signing to the present. 3. There is now less job security in the bargaining unit as a result of downsizing. There has been a significant rise in the number of notices of layoff to both classified and unclassified employees. The union has negotiated some improvements to the job security provisions to deal with these layoff notices. 4, If Article 25.1 of the 1992-1993 Collective Agreement were applied to Mr. Reynolds, his continuous service date would change from March 18, 1986 to May 13, 1990, with a corresponding effect on his entitlement to benefits. For example, his current vacation entitlement of four weeks per year would be reduced, and would not be recovered until 1998. His retirement date, in another example, would be delayed by two years. The Evidence Mark Reynolds testified. Mr. Reynolds, 41, told the Board that he began work for the Ministry of Natural Resources in the summer of 1983. He is one of the employees covered by the Memorandum of Settlement. According to Mr. Reynolds, the rollover agreement has had a profound effect on his life. It gave him job security and a better retirement package, and it significantly improved his benefits, such as paid vacations and life insurance. Mr. Reynolds believed that the Memorandum Of Settlement was permanent and binding. No one ever told him, :prior to the filing of the second grievance, that the effect of Article 25 in the new collective agreement might be to rescind the benefits obtained from the Memorandum of Settlement. Mr. Reynolds was aware of the August 1991 grievance, and testified that he understood that the purpose of this gr!evance was to provide benefits to the covered positions. As already noted, Mr. Gibbs testified. In January, 1992, Mr. Gibbs was Director, Employee Relations Branch of Management Board Secretariat and was involved in the negotiations leading to the 199Z-1993 Collective Agreement. He is also the author of a Memorandum dated June 8, 1992, reproduced in its entirety below. He testified that he wrote this" Memorandum because of some difficulties with the union's interpretation of Article 25.1, and did so in an attempt to clarify some of these misunderstandings - several of which he explained in his evidence. He told the board, however, that he did not consider the position of the roll-over employees when he wrote the Memorandum, and was of the view that the result of his memorandum would be to increase the seniority of employees, not decrease it. According to Mr. Gibbs, he reviewed the Memorandum with OPSEU's Chief Negotiator before issuing it. Union Argument The union argued that this case concerns a problem of two-tiered seniority: Union counsel noted that two employee~,, each with exactly the same length Of service, could have different seniority dates depending on whether they rolled-over or posted in to the classified civil .service. In most cases, counsel noted, the seniority formula set' out in the Memorandum of Settlement providing for the rollover of seasonal employees has resulted in those members of the bargaining unit obtaining greater seniority than employees, who posted in to the classified ranks even if the actual time spent on the Ministry payroll was exactly the same. In the union's submission, it was absolutely clear that Article 25.1 of the 1992-1993 Collective Agreement superseded the earlier Memorandum of Settlement establishing, as it did, a uniform seniority calculation formula for every member of the bargaining unit. Counsel noted that for a number of years unclassified employees who successfully entered the classified ranks had their seniority calculated by terms of what was Article 25.1 of the 1 989-1991. Collective Agreement. The result of the employer's application of this provision, counsel argued, was to limit seniority credit for these employees to their last seasonal contract - usually, a period of approximately 11 months. On October 30, 1990, the union filed a grievance taking issue with this interpretation and, more generally, with .the status of the seasonal employees. Counsel pointed out that the Memorandum of Settlement was negotiated in response to this grievance, and it resulted in the roll-over of some 900 seasonal employees in the classified ranks. By a term of that Memorandum of Settlement, the parties agreed that the roll- over employees would have their seniority calculated using an hourly formula, retroactive to January 1, 1984. The .Memorandum of Settlement was reached on June 13, 1991. On August 6, 1991, the 1991 Grievance was filed. In the union's submission, the purpose of that grievance was clear: to remedy the-imbalance in seniority calculation, resulting from the application of a different formula to the roil-over and posted in employees. in the aftermath of this grievance, counsel observed, the parties entered into negotiations for a new Collective Agreement, and changes were made in the 1992-1993 Collective Agreement to Article 25.1. The fact that these changes were made was, counsel argued, suggestive of the parties' recognition that seniority was both an absolute and a relative concept, and , 14 that it is therefore necessary for all employees to have .their seniority calculated by the same measuring stick. The fact that the 1991 Grievance was outstanding was an important factor to be kePt in mind for it was a necessary part of the overall context in which the collective bargaining negotiations took place. Counsel argued, very simply, that the parties were aware of the problems which resulted from the implementation of the Memorandum of Settlement, and the fact that a grievance had been filed with respect to it, when they entered the negotiations leading to the 1992-1 993 Collective Agreement, and the new provisions of Article 25.1. Turning to that Collective Agreement, counsel pointed out that it is an agreement between Management 8oard and OPSEU, and that OPSFU is recognized in this agreement as the exclusive bargaining agent for all public servants. Counsel argued that this being the case, the reference in Article 25.1 to "an employee" was a reference toall employees, and was not a reference to all employees except roll-over employees. In counsel's submission, this provision, on its face, covered all employees, and set out the formula to be used in calculating their seniority. Counsel suggested, given that the employer was aware during negotiations that there was a union grievance outstanding with respect to th'e calculation of the seniority of employees occasioned as the result of the employer's implementation of the Memorandum of Settlement, that if the parties had wished to exempt the roll-over employees from the.operation of the revised Article 25.1, they had the opportunity, in negotiations, to do so. In the .meantime, the language of the. provision was clear, and counsel argued, that it clearly covered all employees. Accordingly, anyone asserting a contrary provision had, in the. union's submission, the burden of proving their case. Counsel also argued that the very language of Article ?-5.1 indicated that it was to apply to all employees with a retrospective effect. Counsel noted that Article 25.1 does not say that it begins to apply on some date after the Memorandum of Settlement was signed. Rather, it establishes, in subsection (d), January 1, 1984 as the reference point to be used for the calculation of seniority for seasonal employees entering the classified service. In counsel's argument, the significance of this should not, in the context of this case, be under-estimated. Given this earlier date, counsel again argued that if the parties had wished to exempt the roll-over employees and perpetuate the employer-created two-tiered seniority system, they would have had to put some clear language to that effect in the Collective Agreement in order to do so. And the fact is, counsel argued, that they had not. indeed, the union asserted that the impact of the changes to the Collective Agreement, and the employer's understanding with respect to them, could be seen in a June 8, 1997_ Memorandum from Brent Gibbs, the Director, Employee Relations Branch, Management Board Secretariat, to all Ministry Directors of Human Resources, referred to earlier in this award. The text of this Memorandum is as follows: ARTICLE 25 '. SENIORITY (LENGTH OF CONTINUOUS SERVICE) - the article affects all eligible staff automatically and not just those who request it. - employees appointed to classified staff from full time unclassified staff after January 1, 1992 are eligible under 25.1 (b). - employees appointed to classified staff from either regular part: time or seasonal unclassified after January 1, 1984 are eligible under 25.'1(c) and (d). - full time unclassified employees appointed to classified staff before January 1, 1992: and regular part time and seasonals appointed to classified staff before January 1, 1984 are not eligible. - the article determines the seniority of the employee and has nothing to do with the date of postings under article 4 (i.e. whether the date of a competition was before or after January 1, 1.992). Example 1) An.employee with unbroken full time unclassified service from May of 1988, except for one week immediately prior to appointment to classified staff, and who is appointed to classified staff in May of 199Z' starts with four years of continuous service. An employee with unbroken .full time unclassified service from May of 1988, except, for one week immediately prior to appointment to the classified staff and who was appointed to the classified staff in May of 1991 has a seniority from May of 1991. In other words, there is no retroactive application for former unclassified staff appointed before January 1, 1992:, and for regular part time or seasonals appointed before January 1, 1984. In the union's submission, this Memorandum, dated some three months after Article 2:5.1 in the 1992-1993 Collective Agreement came into effect, and which made no mention of special treatment for roll-over employees, indicated that the employer believed that all employees should have their seniority calculated in the same way. Counsel also argued that the timing of the Memorandum of Settlement was important in this case. It was signed during the term of the 1989-1991 Collective Agreement, but before the negotiation and signing of the 1992-1993 Collective Agreement. While it was possible, in counsel's submission, for a Memorandum of Settlement, settling a grievance, to modify a term of a Collective Agreement, counsel argued that any such memorandum, signed during the currency of a prior collective agreement would not continue in effect if the language of a successor collective agreement clearly modified its terms. Simply put, specific language in a collective agreement dealing with a matter in dispute will, counsel suggested, always trump some earlier settlement with respect to that same matter where the subsequent collective agreement provision indicates an intention that the parties wish the matter in issue to be resolved according to different terms. In support of this proposition, counsel cited Re International Association of Machinists. Local 386, and Hobart Manufacturing Co. Ltd. 21 L.A.C. 141 (Johnston) where the Board adopted, with approval, the principle that "a side agreement or letter of understanding does not continue from collective agreement to collective agreement unless in some way incorporated into or attached to the subsequent collective agreement" (at 145). Counsel noted that the Memorandum of Settlement was never incorporated or attached to any collective agreement, and suggested that this further strengthened the union's case. Counsel also referred to a number of cases dealing with seniority beginning with Arbitrator Reville's well-known Tung-Sol of Canada 15 L.A.C. 161 award: Seniority is one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining process. An employee's seniority under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, that an employee's seniority should only be affected by very clear language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is .. contended that an employee's seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement (at 162). In the .union's submission, the Tung-Sol award, among other things, underlines the absolute importance of relative seniority - an issue, he pointed out, of some importance in the instant case. The union also took the position that it was important to respect the collective bargaining decisions of the parties. In this case, that meant giving Article 25.1 its proper interpretation consistent with long-established and generally accepted principles of arbitral jurisprudence. Counsel referred to Re I~iracle Food Mart and United Food & Commercial Workers International Union. Local 175/633 21 L.A.C. (4th)433 (Marszewski), a case interpreting a provision conferring super-seniority on a union steward. In the course of her reasons for decision, Arbitrator Marszewski noted that, in general, arbitrators strictly construe super-seniority provisions (at 438). Counsel suggested that if .the parties had wished to confer super-seniority on the roll-over employees, given the profound implications of such a decision, some specific language in their collective agreement would be necessary to establish that such a grant had taken place. In conclusion, counsel argued that the evidence established that as soon as the union was aware of the employer's interpretation and application of the Memorandum of Settlement, it filed a grievance taking issue with the manner in which the employer was calculating seniority. The employer persisted, notwithstanding the union, representations on point, and the parties were aware of this issue when they entered into the negotiations leading to the 199Z-1993 Collective Agreement. Article 2.5.1 of that agreement was revised, and counsel suggested that it is obvious by the language of that provision that the parties sought, in subsection (d) to ensure the uniform calculation of seniority for all employees. Counsel referred to the term of the Collective Agreement, as set out in Article 86, and suggested that this was yet another reason why the union's grievances should prevail. There was no doubt, counsel stated, that it was well within the parties' power to negotiate away the terms of some settlement. Counsel noted that had Article ;~5.1 provided for a richer seniority calculation formula, it was most unlikely that anyone would have taken the position that the roll-over employees were ineligible because of the Memorandum of Settlement. Such an interpretation would, counsel argued, be complete!y inconsistent with the application of the Collective Agreement across the bargaining unit, which is what the union sought in the instant case. Very simply, in the union's view, there was nothing in the language of Article Z5.1 indicating the parties' intention to establish a two-tiered seniority system. Counsel, therefore, asked. that the union grievances be upheld, and that the employer be directed to recalculate the seniority of the 2O roll-over employees in accordance with Article 25.1, and that the 8oard remain seized with respect to the implementation of its award. Employer Arqument Employer counsel began his submissions by observing that this case does not involve the interpretation of some new provision of the collective agreement. Rather, it involves an issue fundamenta( to labour relations, namely the sanctity of settlements willingly entered into by unions and emPloyers. Counsel noted that the ~lemorandum of Settlement in the instant case involved a large number of employees, and dealt with' a most critical issue: seniority. In the employer's view, the 1997_-1993 Collective Agreement did not overturn the t~emorandum of Settlement, nor did it deprive the beneficiaries of that settlement of the benefits of the deal. Not only did the individual roll-over employees have an on-going expectation interest; counsel argued that the parties themselves have a continuing reliance interest in ensuring that the Settlements they reach will be maintained. And, in the employer's view, these expectations, and this reliance, would have been in the minds of the parties' when they negotiated the 1 992-1993 Collective Agreement. Referring to the Memorandum of Settlement, counsel pointed out that it begins by describing itself as the "full and final settlement of the above-captioned grievance..." In the employer's view, these words, and the document considered generally, evidence the parties' intention that the settlement finally resolve certain matters in dispute and to do so in a forward-looking way. Seniority was one of those issues, and the 21 settlement provided a formula for the calculation of the seniority of the roll-over employees. Counsel also pointed out that the Memorandum of Settlement, and issues relating thereto, have proceeded to hearings before the Board - at a time when the 1992-1993 Collective Agreement was in effect. This evidenced, in the employer's view, the union's continuing reliance on that agreement. If, indeed, it was truly the union's position that the Memorandum of Settlement was superseded by the 1992-1993 Collective Agreement, why would it, counsel asked, continue to rely on the terms of that agreement in arbitration cases before the Board? Counsel referred the 8oard to two awards indicating the union's continuing reliance on the terms of that agreement after the 1992-1993 Collective Agreement came into effect. The only conclusion that could be drawn, counsel argued, was that the union understood and intended the Memorandum of Settlement to have a continuing effect. Moreover, the employer took the position that it could have argued in these cases that the Memorandum of Settlement had been surpassed by the 199Z-1993 Collective Agreement, but did not do so because it too understood that that agreement was to have a continuing effect. Counsel referred to the Anderson et al 291/89 (Dissanayake) award. This case is complicated. However, it appears to have involved a number of grievors, similarly situated to the grievors cOvered by the Memorandum of Settlement, who signed their own memorandum of settlement providing for compensation in return for the withdrawal of their grievances. Subsequently, these grievors sought to take advantage of the Memorandum of Settlement, but were instead confronted with their own settlement which the employer argued permanently disposed of their grievances. This argument was accepted by the Board which Pointed out that: Arbitrators have consistently stressed the sound industrial relations purpose serviced by upholding grievance settlements as final and determinative dispositions of disputes... Quite apart from. the general labour relations policy in favour of treating grievance settlements as final and conclusive determinations of disputes, in the minutes of settlement with regard to the present grievances, the parties have taken careful and explicit steps to make it clear that the settlement is final and conclusive. The union grievance settlement and the settlement of these individual grievances address both the issue of liability, i.e. the proper status of the grievors' employment, as well as the remedy. The memorandum of agreement with regard to these 3 grievances devotes paragraphs 3 to 5 inclusive, to make it clear that all aspects of the dispute are at an end. To remove any possible doubt, in paragraph 6 the parties explicitly agree that "the Memorandum of Agreement constitutes the complete and final agreement between them". ' (Emphasis added). Paragraph 3 provides that "Upon signing of this Memorandum of Agreement by all parties, the grievances shall be deemed to have been withdrawn." This agreement was signed by the local union president as well as the grievors (at 8-9). Having concluded that the matter in issue had been settled, the Board in Anderson et al dismissed the grievances. .. Counsel argued that the Anderson et al decision was important in two respects. First of all, it demonstrated the importance of giving effect to final settlements reached by the parties. Second, it was noteworthy, in counsel's submission, that the union was attempting in the Anderson et al case to have the Memorandum of Settlement apply to those grievors when it was arguing in the instant case that that settlement had effectively been trumped by the amendments to Article 25.1 found in the 1992-1993 23 ~ Collective Agreement. It was interesting, in this respect, that neither the 1991 Grievance nor the 1992 Grievance put the employer on notice that the union would be arguing that the Memorandum of Settlement was somehow no longer in effect. When this evidence was combined with the agreed upon fact that the status of roll-over employees was not discussed in negotiations, nor did it figure in Mr. Gibbs's mind when he wrote a memorandum clarifying the proper interpretation of Article 25.1, it was clear, in the employer's view, that the Memorandum of Settlement remained alive and continued in full force and effect. Indeed, in the employer's submission there was nothing on the face of Article 25.1 that would indicate that that provision was intended to have a retroactive application on roll-over employees. Counsel noted that this provision had an "effective" date of February 3, 1992, and there could be no doubt, in these circumstances, that the provision was intended to be prospective effect. While Article 25.1(d) did provide for an effective date of January 1, 1984, counsel argued that this term had to be read in light of the overall effective date of the provision when it was considered as a whole. Counsel also took the position that the 1991 Grievance and 1992 Grievance were barred as a result of the application of the principle of res judicata. Put another way, once a matter is settled, it cannot, counsel argued, be relitigated and, in support of this submission referred to a number of authorities including Re Stelco Inc. (Hilton Works) and USW 5 L.A.C. (4th) 284 (Haefling). Counsel pointed out that the parties agreed, in their tvlemorandum of Settlement, on the formula to be used to calculate the seniority of the roll-over employees. In this regard, counsel noted that when the parties reach an agreement to settle a grievance, it matters little, in terms of its enforceability, whether the terms of the settlement could have, or would have, been the subject or result of bargaining for a collective agreement: Very simply, there were, in the employer's view, fundamental labour relations principles at stake, and those principles dictated,, in the circumstances of the instant case, that the Memorandum of Settlement be given continuing effect. There were also, in the employer's view, a number of other reasons in favour of a finding that the Memorandum of Settlement continued in effect even though a new Collective Agreement was subsequently signed. Counsel referred to Re Penticton and District Service and Hospital Employees' Union 16 L.A.C. (2d) 97 (Weiler) wherein the following is stated: "Thus the current approach of Canadian arbitrators is to start from the presumption that the agreement as a whole is made retroactive, as the parties have stated in their duration clause. But specific exceptions may be read into · this standard retroactive principle, excluding certain terms of the agreement from the clause, if full retroactivity would lead to quite impractical and unintended results" (at 102. In Re Penticton, Professor Weiler also c~tes Re Canadian Canners Ltd. and lAM 4 L.A.C. (2d) 59 (Schiff) wherein the following observation is made: "When a new collective agreement supersedes a predecessor agreement, in the absence of compelling language in the new agreement arbitrators will not read the new provision as applicable to events occurring before the date of the new agreement's execution if the effect of the retroactive reading would be absurd or would unfairly disappoint the reasonable expectations of those Z5 who had been Subject to the provisions of the predecessor (at 61 ) (emphasis added). In the instant case, there was little doubt, in employer counsel's submission, that retroactively applying Article ?_5.1 to the rollover employees would undermine their interests; the very interests the union sought to protect through the negotiation of the Memorandum of Settlement. Counsel also pointed out that it had been long-established in the jurisprudence that the clearest language was required to abridge seniority rights, and in the employer's submission, there was nothing about Article 25.1 that indicated that it should be applied in such a way so as to abridge the significant seniority interests that were obtained as a result of the Memorandum of Settlement. Employer counsel took the position that given the nature of the interests at stake, any findings about retroactivity should be only be with the greatest of care. Counsel conceded that the cases Which he had referred to deal with status acquired under one collective agreement when that agreement was subsequently changed in negotiations. In this case, the status that was acquired was under a Memorandum of Settlement. The difference in instruments did not, in the employer's view, affect the fundamental principles to be applied. In counsel's submission, memorandums of settlement continue in force from one collective agreement to the next. If this were not the case, counsel suggested, parties to a collective agreement would have to re-sign all of their settlements at the expiry of one collective agreement and the commencement of the next. 26 In conclusion, Counsel argued that there' was no basis for finding retroactivity in Article 25.1 of ~the 1992-1993 Collective Agreement. Counsel pointed out' that it was agreed by the parties that there was no discussion whatsoever about the Memorandum of Settlement in the negotiations leading to the 1992-1993 Cellective Agreement, and he observed that that the Memorandum of Settlement had been entered into willingly and freely by the parties. There was, accordingly, no basis to find that Article 25.1 was drafted to overrule or overturn that settlement and to establish a new method of calculating the seniority of all employees. Counsel pointed out that, in any case, Article 25.1 of the 1992-1993 Collective Agreement gives an effective date of February 3, 1992, and this date establishes that the provision was not intended to have a retrospective effect. Accordingly, counsel asked that both grievances be dismissed. Submissions of the Third Parties Mr. Straszynski began his submissions on behalf of Mr. Reynolds and other third parties by referring to some of the facts. He noted that Mr. Gibbs testified that the June 8, 1992 Memorandum was not intended to deal with the status of roll-over employees, and there was no basis, therefore, for arguing that it evidenced any intention on the part of anyone to retroactively apply Article 25.1. In Mr. Straszynski's view, settlements were inviolate. Settled grievances were not, he pointed out, arbitrable, and this is why, he argued, the present grievances were not properly before the Board: the matter in dispute had already been resolved, and counsel cited Re Stelco (Hilton Works~ and USW, referred, to earlier in support of the proposition that once an issue is resolved by a memorandum of settlement that same issue, cannot be subsequently raised in a new grievance, even where the terms of settlement deviate from the strict terms or language of the collective agreement. Counsel noted that the parties had both been represented in the settlement discussion, and both parties had the expectation, when they signed the Memorandum of Settlement, that the deal they reached - their full and final settlement - would be honoured in the future. And, in Mr. Straszynski's view, the Board routinely declines jurisdiction in cases of this kind and cited Anderson et al in suppOrt of this submission. In the alternative, counsel argued that Article ?_5.1 was not applicable to the roll-over employees. Counsel submitted= that the roll-over employees had their seniority, on entry into the full-time ranks of the Ontario Public Service, calculated by the Memorandum of Settlement and not by a term of any collective agreement, Counsel pointed out that Article 25.1 sets out a formula for the calculation of the seniority of seasonal employees, not roll-over employees, and took the position that it was therefore inapplicable in the instant case. Referring to a number of documents introduced into evidence, Mr. Straszynski argued that the roll-over employees were a group separate and apart, and that is why a specific Memorandum of Settlement was reached providing for the calculation of their seniority. With respect to seniority, counsel referred to the Tung Sol case, and submitted that seniority should only be detrimentally affected by the clearest provisions. There was nothing in Article 25.1, in Mr. Straszynski's view, that evidenced any intention of the parties that it should be applied to the roll-over employees with the result of diminishing their seniority 28 and entitlements. The. reference, in that provision, to seasona~ employees was, counsel argued, insufficient to encompass ~he ro~-ove~ employees for they were no ~on~er seasona~ employees. Mr. Straszynski also took the position that the Memorandum of Settlement was a collateral contract, and was not, in the circumstances of this case, superseded by the negotiation of a subsequent collective agreement. There was no basis in the agreed-upon facts or evidence to find that the Nlemorandum of Settlement had somehow lapsed, and absent explicit language to this effect, counsel argued that it should be given continued . effect. In Mr. Straszynski's view, the parties signed a Memorandum of Settlement, and the third parties were entitled to continue to rely on it. Accordingly, he too asked that the grievances be dismissed. Union Reply In reply, union counsel argued that the grievances were arbitrable, and suggested that the Article 25.1 was clearly intended to apply to seasonal employees who had obtained classified status. Counsel also took the position that the union was not, in this case, taking issue with the general proposition that settlements, for good or for ill, must be respected. What the union was doing, however, was arguing that a settlement can be overturned or succeeded by the parties in their post-settlement collective agreements, and that in this case, section 3 of the Memorandum of Settlement was overtaken by Article 25.1 of the 199Z-1993 Collective Agreement. The remainder of the settlement remains in force. Counsel also took the position that there was no case standing for the proposition that individual employees have an estoppel-like interest which they can assert in a collective bargaining relationship, and argued that there was nothing stopping the union and the employer from modifying a Memorandum of Settlement through the negotiation of a new collective agreement term. And this, counsel argued, is exactly what had taken place in the instant case. The whole purpose of Article 2_5.1, counsel submitted, was to create a level playing field for all employees regardless of how they joined the classified ranks, and to do so through the application of a uniform system of seniority calculation. Counsel noted that the employer issued a memorandum dated June 8, 1992, and while it was true enough that Mr. Gibbs testified that he' reviewed that document with a union official, there was no evidence of what exactly they discussed. Certainly, it was open to the Board to find that that memorandum was intended to cover all employees including the roll-over employees, for it did not exclude them from its intended operation. What possible reasons could there be, counsel asked, for giving roll-over employees greater seniority than employees who had posted in if both types of employees had, in fact, exactly the same continuous service? Counsel suggested that there was no answer to this question. In counsel's submission, the integrity of settlements was not the issue in this case. What was in-issue was the language of Article 25.1 of the Collective Agreem'ent, and counsel argued that that language provided a formula for the calculation of the seniority of all employees, including those who rolled-over pursuant to the Memorandum of Settlement. Counsel again noted that had the 199;?-1993 Collective Agreement provided a richer formula for the calculation of seniority than the one found in the Memorandum of Settlement, it would have been most unlikely that the employer would have 30 said claimed that the roll-over employees were barred from the benefit of the new Collective Agreement. bargain on the basis that they had earlier agreed to different terms in a Memorandum of Settlement. Counsel concluded with the observation that the union did not take any pleasure in seeing the seniority of some of its members reduced. It was responsible, however, to all of its members. And that is why it negotiated Article 25.1; to ensure that everyone had their seniority calculated in the same way. Accordingly, counsel asked that both grievances be upheld and that the appropriate declaration be issued. Decision Having carefully considered the evidence and arguments of the parties, we have concluded that the two grievances before us must be dismissed. As noted earlier in this award, the union takes the position that certain provisions of the 1 992-1993 Collective Agreement retroactively readjusted the seniority of the roll-over employees by providing a new and commons basis for the calculation of seniority of all employees. The employer, and third parties, take the position that the new Collective Agreement does not supersede the terms of the Memorandum of Settlement ahd that its results, therefore, should not be interfered with..Put another way, the Board must, in determining the two grievances before it, determine if the seniority of the roll-over employees continues to be calculated by the Memorandum of Settlement, or if it should be calculated by the provisions of the 1992-1993 Collective Agreement. In our view, and for the reasons that follow, we have concluded that the Memorandum of Settlement remains in effect. We have reached this conclusion for a number of reasons. 31 The Sanctity 'of Settlements It is absolutely essential that the Board give effect to final settlements reached between the parties. This principle is well-established in the Board's jurisprudence. It was given effect in Anderson et al, a case referred to earlier in this award, and it has been repeated time after time in a legion of other cases including Landry-King 1593/84 (Knoph) where the Board held: The Board wishes to do everything possible to foster and honour settlements reached by the parties. Once settlements are achieved, parties must feel confident that they can rely upon them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why a settlement once obtained, cannot be honoured by the parties, this Board should not even attempt to interfere with the Settlement (at 8-9). In Edgett et al 2476/90 (Dissanayake), the Board held, following an extensive review of the cases, that: Those policy considerations supporting the need to uphold the final and binding nature of grievance settlements recognized by private arbitrators and the Ontario Labour Relations Board, apply with equal vigour and force in proceedings before this Board. The purpose of-the pre-arbitration grievance procedure under the collective agreement is to provide the parties an opportunity to resolve disputes informally, promptly and without the expense and delay of arbitration. Besides, it is generally accepted that a settlement reached between the parties is a far preferable way of resolving a dispute that an award handed down by a third party. If the efficacy of a settlement so reached is to be maintained, the parties must be held to their agreement..(at 10-11). 32 It shou)d be also be noted that the Board does not, in genera), concern itself with the content of sett)ements. As noted in Vinal) et a) 1270/86 (Gray): The enforceability of a grievance settlement cannot depend on whether the terms of the settlement reflect what an arbitrator would have done or could have done in response to the original grievance. Nor can it depend on whether it would have been within an arbitrator's jurisdiction~ to impose the terms which the parties incorporated into the settlement. Limiting .the enforceability of settlements in those ways would effectively negate one of the considerable attractions of dispute resolution by negotiated settlement - that the' parties are not confined, as an arbitrator would be, in defining either the scope of the problem they wish to resolve or the nature, of an appropriate response to it. Similarly, the enforceability of a grievance settlement cannot depend on whether its terms could or would .have been the subject of bargaining for a collective agreement. If settlements are to be encouraged, any lawful provision of a settlement agreement must be enforceable, and enforceable in the same forum as any other such provision (at 14). In the instant case, a grievance was filed and the parties entered into a "full and final" settlement with respect to it. This Memorandum of settlement conferred, as the additional agreed-upon facts demonstrate, a substantial benefit upon a group of employees. While we may not Ilke the settlement, or its impact, namely the creation of a two tier' seniority system, there is no doubt whatsoever that it is neither unlawful nor is it contrary to public policy. For whatever reasons, the parties decided to resolve a dispute between them by acceding to its terms - terms which were then, and which continue, to have effect. The only possible basis for overturning the Memorandum of Settlement, and its results,, would be by finding that the parties agreed, in collective bargaining negotiations or otherwise, to set it aside. And, for the reasons that follow, we find no such agreement. The Settlement Continues to Have Effect Union counsel made a number of arguments in support of the union's assertion that the parties, in agreeing upon a new Article 25.1 in the 1992-1993 Collective Agreement effectively or constructively addressed the problem which arose from the implementation of the Memorandum of Settlement, namely the creation of a two-tier seniority system, by negotiating a new, and common, basis for the calculation of the seniority of all employees. There is no doubt that the union responded .in a timely way when the implications of the Memorandum of Settlement became clear. On August 6, 1991, a grievance was filed, its purpose, as union counsel observed, was clear: to remedy the imbalance in seniority' calculation. There is also no doubt but that the parties, soon after this grievance was filed, entered into collective bargaining and changes were made to the relevant seniority provisions of the Collective Agreement. While a grievance was outstanding at the time of these events, the evidence demonstrates that neither this grievance, nor the consequences of the implementation of the Memorandum of gettlemer~t, were discussed in negotiations. Nevertheless, changes were made to the seniority provisions, and the un!on took the position that these changes reflect the intention of the parties to deal with the outstanding issue in dispute. With respect, we disagree.' In our view, the absence of discussion is not fatal to the union claim. .Where a union grievance is outstanding and where amendments to the 34 Collective A~reement are s~bsequently made, one can s~rmise that the events are not unrelated. What matters, however, is the nature of the change and the language that is used. The new Article 2_5.1 begins with the words "Effective February 3, 1992_..." The case could probably be decided on the interpretation of these words alone. These words are prospective, not retrospective. They indicate that from February 3, 1992_, seniority will be calculated according to the terms set out in the following text. Moreover, the roIFover employees already had had their seniority calculated. This provision applied to new employees,' not to classified employees with recognized seniority dates. The fact of the matter is that the interpretation of this provision would result in lesser seniority for seasonal employees who rolled-over following the "effe~:tive date," and it may be that this is also unfair. But, that, of 'course, is not the issue before the Board. The matter before us is the. construction of the provision, and we are of the view that it does not apply retrospectively. "Effective" means, "starting from," "from now on." Any doubt about the prospective nature of the term is resolved by examining the last three lines of the provision which state: "Effective December ZO, 1990, any leaves-of-absence granted under Articles 3.9 and 3.35 shall be included in the calculation of length of continuous serVice.''. Obviously, a leave of absence granted prior to December 2_0, 1990 would not be included' in the calculation of length of continuous serVice (at least not under this provision). Given the use of the word "Effective," followed by the assignment of a particular date, we cannot find the parties intended to the provision to have a retrospective effect. It is, of course, true enough that Article 25.1(d) is effective from January 1, 1984, and this is a key provision insofar as the calculation of seniority for seasonal employees is concerned. However, Article 25. i(d) cannot be read separately from the introductory words in the provision. But even if it could, it does not apply to the rollover employees for they were no longer seasonal employees when this provision came into effect. They were members of the classified service with already established seniority dates. Article 25.1(d) only applies to seasonal employees who join the classified'ranks after February :~, 199;). it is most unlikely that the parties, in signing the Memorandum of Agreement, or in negotiating Article 25.1 in the 1992-1993 Collective Agreement intended to create a two-tiered seniority system. No doubt, had the parties been aware of the implications of the Memorandum of Agreement, they would have adjusted its terms. That, however, is not a reason for us to negate the Memorandum of Settlement or give Article 25.1 a meaning that it cannot reasonably bear. it is true enough that the union continued to raise concerns with respect to the consequences of the Memorandum of Settlement - the filing of the 1 992 Grievance is evidence enough of that. However, it is also clear that at this very same time, the union continued to assert that the Memorandum of Settlement remained in effect. Any doubt about the parties views on this point is resolved by referring to the Anderson et al case. In that matter, postdating the signing of the 1992-1993 Collective Agreement, which, according to the union retroactively adjusted the seniority of the roll-over employees, it is quite clear that the parties acknowledge that the Memorandum of Settlement remains in effect. Obviously, this position is in direct conflict with the union's position in the instant case. The fact that a member of management subseqUently wrote a memorandum setting out his view of the proper interpretation of Article 25.1 is neither here nor there, particularly since that same person also testified that he had not considered, in drafting that June 8, 1992 memorandum, the.status or seniority calculation of the rollover employees. In further support of its position the union argued that side-bars, or letters of understanding do not necessarily continue from one collective agreement to the next. This is undoubtedly correct. However, the Memorandum of Settlement is different, It is a comprehensive agreement signed by the parties resolvin9 a serious outstanding matter between them and conferring significant rights' on approximately One thousand .employees. Those rights crystallized in the immediate aftermath of the parties' agreement, and the employees concerned began to 'enjoy, for the most part, new or increased benefits. The rollover employees had their classified service seniority calculated after the Memorandum of Agreement was signed, and there is no reason to find that this seniority date was, or would be, subject to further revision. What the Memorandum of Settlement provided for was the determination of a continuous service date. That date will remain in effect throughout the employment of the' rollover employees unless the parties, through negotiation, decide otherwise. As a general matter, and unless there is evidence indicating a contrary intention, an employee's seniority date does not change from one collective agreement to the next. No matter how or when obtained, it continues in force unless there is some compelling reason to find that the parties have 'intended to retroactively adjust it. To retrOactively readjust the seniority dates of the rollover employees, given the magnitude of such a change on members of that class, some specific language would be required. Not only is there no such language in this case, none of the surrounding circumstances, as revealed in the evidence about collective bargaining negotiations, not to mention the evidence with respect to the parties' continuing reliance on the Memorandum of Settlement, assist the union in the prosecution of its claim. Even if Article 25.1 were ambiguous, and We find that it is clear and prospective in intent, there is really only one background fact that assists the union in this case: the presence of an Outstanding union grievance at the time of negotiations followed by a change in the seniority text, In the circumstances of this case, however, when 'all of the factors are considered, this one background fact is, in our view, simply insufficient to evidence an intention to institute a significant and far-reaching change - one with potentially dramatic effects on the benefits enjoyed by an extremely large group of emplo);ees. Benefits, we must add, which were conferred upon them by an agreement reached between the parties. Needless to say, it is completely open to the parties to agree to set aside the Memorandum of Settlement and .provide for the recalculation of the seniority dates of the rollover employees in accordance with Article 25.1 and, in that-way, ensure the uniform calculation of seniority throughout the bargaining unit. That is a choice that they'can make. However, there is no basis in this case to find that this choice has been made. And in the result, the Memorandum of Settlement continues in effect, and will do so until the parties meaningfully indicate a joint intention that it be otherwise. From Tung Sol 'forward arbitrators have emphasized the importance of seniority. Seniority provisions must be strictly construed. Significant seniority rights were obtained by the Memorandum of Settlement, and those ~ights can only, and should only, be truncated, abridged, or forfeited, by very clear language - language which, as we have found, is completely absent in this case. The results of the Memorandum of Settlement may be unpalatable; Some employees may have received a windfall, while others, given the relative nature of seniority, have been disadvantaged. But it was, the parties' decision. If they want to change it, they are free to do so. In the result, and for the foregoing reasons, both grievances are dismissed. DATED at Toronto this Z8th day of September 1995. .,~j"/ .,~./~ .. __Z_ 'f; William Kaplan Vice-Chairman Fred Collict ~ Member I dissent. Ebasons to Follow. Menno Vorster Member DISSENT BY UNION NOMINEE MENNO VOllSTE~ Ontari. o Public Service EmpI0yees Union \ and ~ o£Natural ResoUrCes Union Grievance - Seniority (G.S.B. #1526/9! and 1294/92) I must resp~ c[~sellt i~om t~e opinion of (lie Inajority irt tJ2Js Award and do so most' emphatically. I submit that the Conclusions expressed by the Chair will have a decidedly ctet~mentaI effect on the labour relations between these parties. The Board concluded ~mt in the last round of bargaining~ the parties purposely intended to negotiate seniority provisions that perpetuate, and even expand, a multi-tiered seniority system. In reacl:dng w~t I believe to be an erroneous conclusion, the board has seriously prejudiced the employment security of hundreds and perhaps thousands of bargain/ng unit members in favour of the rollover appointees to the classiBed service. The facts leading to t[gs dispute were laid out iu detail dur/ng the course of the hearing and have to a large extent been recounted by the Chair. The Employer and the Union had for years been governed by the same ground rules for the aecum~tion of seniority by al! baxg~ing unit employees, namely those found in Article 2,5 of the 1989-1991 collective agreement between .the C-overnment of Ontario and O.P.S.E.U. on June 13, 1991, the parties agreed:to give the rollover employees a more generous seniority calcula~on formula as part of the "rollover settlement". Almost irnmecli~tely afterwards, on August 6, 1991, the Union flied the ~[rst of two grievances in an effort to rectify this untenab]e labour relations situation. Within a f~w months, however~ the Union believed it had bargained with the employer the most sensible labour 2 reblions solution: the 1992.-93 co]].ecth~ agreement brought in sweeping changes to the m~ner by which ~ll employees would ]nave sen/ority calculated in the same manner in the future, In doing so, the parties reverted back to a single semiority formula for ail employees. In denying the g,zievance, the majority rejects the notion that the parties intended to return to the single formula seniority system applicable to all employees. Instead, the majority says that the newarticle P_.5 is "prc~eetive" and not "retrospective", and therefore does not apply to any employee who tran,,ferred from unclasped status to the classified stagprior to Februm7 3, 1992. In doing so the Board majority has esmbhshecl three dist/net seniority calc~tions for class/fled full-tt~e employees in the same barga/ning,mit 'Pnere is now effectively one seniority form, da for pre-February 1992 "bid-in" appointees to the e. lass~ed service; another more gealerous formula for all post-Felmmry 1992 appointees, andyet a third, gold-plated formula for rollover employees. So much for the sanctity of seniority vcithin the collective agreement. I would submit that the parties could not possibly ]nave intended thi.~ result. T}le uncontradicted evidence before the board was that in June 1992 the Employer had applied Article 25.1 "retrospectively" to the bid-in employees wtzo were appo/nted prior to Februm-y 3, 1992. Management Board negotistor Brent Gibbs gave tmrefuted evidence condusively demonstrated th.t it was the mutual intent of the parties to apply the recalc~,l.tion of seniority flowing from Article 25.1 to ali ex/sting classified employees in the bargaining ~mit rather than to restrict its application solely to any future appointments to the classified sta~. w~uld respectfulbr submit that to thi.~ extent, the majority ruling amends the collective agreement as it ha.~ been negotiated, signed, and applied by the parties. I would fm-ther suggest that the uncontradicted evidence demonstrates that the majority has simply misinterpreted the concepts of "retrospectiv/ty" and "prospectivit~' in the labour relations context and as it apphes to Article 9,5.1. Properly interpreted, article 9.5.1 is not "retrospective" in its apphcation in any respect: ail seniority-based rights such as job competitions, 3 job security, vacation, etc., prior, to February 3, 19912, continued to be determined by the seuiority £ormulas either in the expired*collective agreement or the Memorandum of' Settlement govern~ug rollover employees. This is precisely how it is interpreted in the' memorandum by M/nishynegot~, tot Brent Gibbs which was entered into vidence.. The new Article 9,5.1 required the reca!cttl_~tion on February 3, 1992 o£ the seniority of' ."all employees" with regard to prospective seniority-based rights in future job competitions, layot~fs, vacations, etc. The proper interpretation of Article 9,5 is quite clear: on February 3, 1992 all bargaining unit employees, including "rollovers", have their seniority recalculated on .a new form,Sla: Thh recalculated seniority applies to future job competitions, layoffs and recalls, vacations and so on, but no.__~t to any of those entitlements that arose prior to February 3, 1999.. I vmuld respect~ submit ~Hat the majority further m/sinterprets the the Tunf Sol case. That Case, and those hundreds of arbitral awards tb~t have cited it as authority for the great importance of employee seniority' based upon length of service, is about the seniority of emplofees who returned to work after a strike only to find that their employer had credited seniox/ty for the length of the str/ke lo stzikebreak/ng employees but not to strikers. Judge Reville was smtck by the unacceptable labour relations consequences of' giving str/kebreaking employees an,mr'air a~tage over strikers in seniority. He did so because seniority is rfitst and foremost a relative concept which provides (as the. majority in ~ award says) "a common measuring stick" for all employees who wish to ma/ntain employment security. In the collective agreement between these parties, Article 24 provides for employment security based upon continuous service as determined by Article 25.1. Notice of layoff, redeployment to vacancies and bumping are ali determined by the relative seniority between classified employees. The very livelihood of ali employees depends upon relative seniority. The Union's pc~ition and, I sub_m/t, the correct interpretation of article 9.5.1, does amencl - the "absolute" seniority rights of the rollover employees which resulted from the "ro].lover 4 settlement": vamtion~ severance anc[ pension entitlements. However arlicle g5 does ~ abridge the to]lover employees' "relative" seniority rights except to the extent that it eliminates the wincl[~ anhmn~age enjoyed by rollover employees over similarly situated bid-in employees. Given the evidence and labour relations common sense, I beheve th~.~ is the only reasonable interpretation o£article 25.1 in the 1991~-3 collective sgreement. For that reason, I would have allowed the grievance and remitted the master to the parties £or discussion of' remedy. Respectfully submitted, Meauo Vo~ter Vice-Chair's Addendum I have read the union member's dissent, and consider it appropriate to make a few observations in response. The Board did not "conclude that in the last round of bargaining,-the parties purposely intended to negotiate seniority provisions that perpetuate, even expand, a multi-tiered seniority system," What the majority of the Board did conclude was that the Memorandum of Settlement remains in effect as the parties did not, in bargaining, address the anomaly resulting from it, While changes were made to the relevant seniority provisions of the Collective .Agreement, having considered all of the evidence, including the outstanding union grievance, we could not fairly conclude that the new provision was intended to address the impact of the Memorandum of Settlement, and we . reached that conclusion following a careful review of all the background facts as well as the specific language of the provision. A few additional observations are in order. The dissent suggests that the Board "has seriously prejudiced, the employment security .of hundreds and perhaps thousands of bargaining unit members in favour of the rollover appointees to the classified service." This is simply incorrect. All that ' the Board has done is declare that the Memorandum of Settlement entered into by the parties remains in effect. It .is noteworthy that the dissent acknowledges who truly bears responsibility for the situation brought before the Board: "On June 13, 1991, the parties agreed to give rollover employees a more generous seniority calculation formula as part of the 'rollover settlement'"(emphasis ours) Exactly. It was the parties who entered into the agreement, not the Board. All that a majority of this panel of the Board has done is find that the Memorandum of Settlement remains in effect. In the same way that seniority is important in labour relations, so too is upholding agreements reached by the parties. There is, very simply, nothing in the language of Article 25, nor in the facts as we have found them, that evidences an intention that the seniority of all employees be recalculated according to its terms. Had the parties desired that result, they could have easily said so. While the dissent makes.a number of observations as to how Article 25 should be properly applied, it suffices to say, and for the reasons set out in the body of the award, that the majority finds that this interpretation is not sustained by the language of the provision.