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HomeMy WebLinkAbout2017-2895.Union.20-03-11 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2017-2895; 2017-3879 UNION# 2017-0999-0041; 2018-0999-0006 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat and the Ministry of the Solicitor General) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Katherine Ferreira Koskie Minsky LLP Counsel FOR THE EMPLOYER Paul Meier Treasury Board Secretariat Legal Services Branch Counsel HEARING September 13 and 16, 2019 - 2 - Decision [1] I have two Union grievances before me that complain about the way the Employer resumed the process of salary progression under the 2018-2021 Unified Collective Agreement (“Unified CA”) and the 2018-2021 Correctional Collective Agreement (“Correctional CA”). The grievance dated August 24, 2017, relates to the Unified Bargaining Unit (“the UBU”) and the grievance dated February 12, 2018, relates to the Correctional Bargaining Unit (“the CBU”). There was a salary progression freeze during the last two years of the 2015-2017 Unified and Correctional CAs. The Union grievances essentially raise the question of how salary progression should resume under the relevant Collective Agreements after the ending of a salary progression freeze. This question is only of interest for employees who had not reached the maximum step of the salary progression range prior to the imposition of the salary progression freeze. [2] The parties made a considerable effort to litigate the Union grievances as efficiently as possible. To this end, counsel devoted some time to develop an agreed statement of facts (“ASF”) and to compile a Book of Documents. Counsel agreed that any document contained in the Book of Documents was subject to the right of a party to challenge its admissibility or relevance. The Union did challenge the relevance of a number of documents. Counsel also agreed to exchange casebooks in advance of the hearing. Given these efforts, the parties found it unnecessary to call witnesses and the hearing was completed after two days of submissions by counsel. [3] Before turning to the key circumstances in this case and the positions taken by the parties, I will set out the ASF. The ASF includes an explanation of how salary progression along the salary grid usually works and some bargaining and interest arbitration history for the relevant 2015-2017 and 2018-2021 Collective Agreements. The ASF provides as follows: Agreed Statement of Facts 1. The Ontario Public Service (OPS) assigns each position a classification: for example, Office Administration 08 (08OAD), Fire Safety Officer 2 or - 3 - Correctional Officer 2. These classifications are listed in the Collective Agreement (in either the "Unified Salary Schedule" or the "Correctional Salary Schedule"). Each classification is assigned an hourly or weekly salary progression range, as outlined in the Collective Agreement;1 each classification's salary progression range has a series of "steps," from the lowest step (normally, the starting wage) to the highest step (which is the maximum wage of the classification). 2. When an employee is hired, s/he is hired into a specific classification and a specific step in the salary progression range. Under the 2015-2017 Collective Agreement, most classifications have seven steps in the salary progression range for the classification. 3. Normally, an employee commences working in a classification at the lowest step of the salary progression range.2 4. As a general principle, employees will progress incrementally through the salary range to the maximum of the range.3 An anniversary date is established for each employee. Generally, merit increases are effective on an employee’s anniversary date. However, some classifications have “semi-annual progression” (e.g. “Agricultural Specialist 1)4 or “semi-annual progression until #th [sic] step” (e.g. “Office Administration 6” with semi- annual progression until Step Two).5 5. The employee’s progression is to the next step in the salary range until the employee reaches the maximum of the range as set out in the Salary 1 2015-2017 Collective Agreement, Tab 1 of the Book of Documents: There are a few exceptions. At page 412 of the 2015 – 2017 Collective Agreement, the parties listed seven classifications in the Unified Salary Schedule “for which there no equivalent classifications in the Civil Service”. These classifications “were established for pay purposes for employees with an appointment status of fixed term”. The parties clarified that, for each of these seven classifications, they are “not a salary progression range. These are individual employee rates used by ministries”. 2 2015-2017 Collective Agreement, Tab 1: There may be exceptions: e.g., a new hire with additional skills/experience or an employee is “promoted” and other rules, e.g., where the duties of an employee are changed as a result of reorganization or reassignment of duties and the position is reclassified to a class with a lower maximum salary (see Article 7 of the 2015 – 2017 Collective Agreement’s “Pay Administration” provisions). 3 Public Service Commission, Merit Increases Directive, Tab 2, “Principles”, page 1, section 6. 4 2015 – 2017 Collective Agreement, Tab 1: See page 337. 5 2015 – 2017 Collective Agreement, Tab 1: See page 378, “SA-02”. - 4 - Schedules (although some maximum rates to which an employee may progress are amended by the Collective Agreement’s applicable “General Notes and Allowances”6). 6. In 2014, when bargaining between OPSEU and the Crown began, 34.9% of the bargaining unit members in the Unified Bargaining Unit had not reached the maximum of their applicable salary range. 19.1% of the bargaining unit members in the Correctional Bargaining Unit members had not reached the maximum of their applicable range.7 THE JANUARY 1, 2015 TO DECEMBER 31, 2017 DEALS 7. On October 3, 2014, OPSEU served the Crown (the Employer, as represented by Treasury Board Secretariat) with notice of its intent to meet and negotiate changes to the OPSEU Collective Agreement which comprises the Central Collective Agreement, the Unified Collective Agreement and the Correctional Collective Agreement.8 Unified Bargaining Unit 8. On September 22, 2015, the Crown and OPSEU reached a tentative agreement with respect to the Central and Unified Bargaining Units. 9. Article 6.1 of Section 18 (“Negotiations”) of the OPSEU Policy Manual9 states: 6 2015 – 2017 Collective Agreement, Tab 1: For example, the “General Notes and Allowances, Unified Bargaining Unit” (starting at p.331 of the 2015 – 2017 Collective Agreement) contains a Note (“G15”) for employees in positions classified as E.E.G. Technician 2 or E.E.G. Technician 3 in the Institutional and Health Care Classification Group, stating that these employees “may be paid one (1) rate above each listed rate in the salary range. The new maximum rate to which an employee in receipt of this note may progress is contained in parentheses”. 7 Submissions of the Union in the Matter of an Arbitration between OPSEU and the Crown dated March 28, 2016, Tab 3, page 14. 8 Letter dated October 3, 2014 from Ms. Ruth Hamilton, OPSEU OPS Lead Negotiator to Mr. Reg Pearson, Associate Deputy Minister, Bargaining and Compensation, TBS, Tab 4. 9 OPSEU Policy Manual, Negotiations, Section 18, Article 6 (excerpt), Tab 5. - 5 - Any collective agreement negotiated in the name of the union with the employer must be ratified by the members and signed by the members of the team and the president of OPSEU. 10. Article 6.4 of the OPSEU Policy Manual states: OPS members shall receive a written summary of the proposed contract changes,…[and] a summary of the issues and/or offer to be voted on. 11. In its Table Talk publication (Issue 28) dated October 9, 2015, the Union set out “in considerable detail all the new provisions contained in the tentative agreement”.10 Under the heading “Salary Grid Progression Freeze”, the Union stated: ● Employees who have not reached their maximum salary will not progress through the salary scale in 2016 or 2017. ● Your team fought very hard and was successful in fighting off the proposed 12-step grid, as well as a five per cent lower starting level for new hires and those changing positions. 12. On October 30, 2015, the parties ratified a new three-year Central/Unified OPSEU Collective Agreements (2015-2017). 13. Under “PART C – SALARY AND TERM” of the Unified Collective Agreement, the parties agreed as follows at Article UN 16 “Salary”: UN 16.1.1 Effective January 1, 2015, the salary rates in effect on December 31, 2014, shall remain in effect, and are contained in the Salary Schedule set out in the 2013-2014 Collective Agreement. UN 16.1.2 All salary rates to be increased across the board as follows: January 1, 2017 – 1.4% The salary rates in effect on January 1, 2017 for all classification are contained in the Salary Schedule attached.11 10 Table Talk, Issue 28 dated October 9, 2015, Tab 6, page 2. 11 2015-2017 Collective Agreement, e.g., the “Unified Salary Schedule”, Tab 1, page 337. - 6 - 14. The Parties also agreed to a 1.4 per cent lump-sum payment for all members of the bargaining unit as of January 1, 2016 (the one-time lump sum payment did not form part of the employees’ base salaries).12 15. Appendix UN 8 of the 2015-2017 Unified Collective Agreement stated:13 Letter of Understanding … Re: Salary Progression Freeze The parties agree that notwithstanding any other article in the collective agreement, all employees’ salary rates as of January 1, 2016 shall be fixed at that rate and no employee shall be entitled to any salary progression from January 1, 2016 to December 31, 2017. Employees hired or appointed into positions in the OPSEU bargaining unit during the term of the collective agreement shall have their salary fixed at the salary rate received upon hire or appointment and shall not be entitled to any salary progression for the duration of the collective agreement. Correctional Bargaining Unit 16. Following ratification of the Central and Unified Bargaining Unit collective agreements, the Employer and OPSEU continued to bargain towards a Correctional Collective Agreement for the Correctional Bargaining Unit. 17. On November 24, 2015, the parties reached a tentative agreement for the Correctional Bargaining Unit.14 18. In the tentative agreement, the parties agreed to monetary items that were nearly identical to those that had been previously ratified in the Unified Collective Agreement, including the salary progression freeze from January 1, 2016 to December 31, 2017. Item #2 of Appendix B (“U18”) appended to the tentative agreement, under the heading “New Appendix – 12 Table Talk, Issue 28 dated October 9, 2015, Tab 6, page 1. 13 2015-2017 Collective Agreement, Appendix UN8, Letter of Understanding, “Salary Progression Freeze” dated October 30, 2015, Tab 1, page 330. 14 November 2015 Memorandum of Settlement, Tab 7(c) to Tab 7(f). - 7 - Salary Progression Freeze”, stated: “No progression through the salary grids in 2016 or 2017”.15 19. On December 10, 2015, members of the OPSEU Correctional Bargaining Unit voted to reject the tentative agreement, voting 67% against the deal. 20. On January 9, 2016, the Employer and OPSEU reached a final agreement for the Correctional Bargaining Unit.16 21. In the final agreement, the parties agreed to incorporate previous tentative agreement items and agreed to refer certain “matters remaining in dispute between them to an interest arbitrator for final and binding determination”. Paragraph 6 of the final agreement stated:17 The parties acknowledge that the following Correctional Category Agreement matters remain in dispute and shall be referred to arbitration in accordance with this MOA: i. Special wage adjustments for all members of the correctional bargaining unit for the term of January 1, 2016 to December 31, 2016, if any. ii. Special wage adjustments for all members of the correctional bargaining unit for the term of January 1, 2017 to December 31, 2017, if any. iii. The issue of progression through the pay grids. 22. Paragraph 8 of the final agreement stated: Pending the issuance of the final and binding decision…, the parties agree that all members of the correctional bargaining unit shall continue to progress through the pay grids as set out in the Correctional Salary Schedule Salary Rates section of the Correctional Category Agreement with the term of January 1, 2013 to December 31, 2014. The parties agree that the final and binding decision will be applied upon its issuance, with any necessary retroactive adjustments. 15 Appendix B (U18), Tab 7(f). 16January 2016 Memorandum of Agreement (Tab 7(a)) and Memorandum of Settlement (Tab 7(b)). 17 MOS, Tab 7(a), page 2. - 8 - 23. In its Table Talk publication (Issue 43) dated January 9, 2016, the Union stated:18 As of now, members who have not reached the top of the pay grid will move up one step if they were hired before 2015, based on the anniversary of their hire. Those who have still not reached the top of the grid will move up another step in 2016 if their anniversary date occurs before the arbitrator rules on wages. The parties agree that the goal is for the arbitrator to rule before March 31, 2016. In his ruling, the arbitrator will decide whether movement through the grid will continue through the rest of 2016 and 2017. 2016 COR Interest Arbitration Submissions 24. In its submission to Arbitrator Burkett dated March 28, 2016, the Union opposed any freeze to movement through the salary progression range in 2016 and 2017.19 The Employer also made its submissions to Arbitrator Burkett in support of the salary progression freeze on March 28, 2016.20 2016 Burkett Interest Arbitration Decisions May 26, 2016 Decision 25. On May 26, 2016, Arbitrator Kevin Burkett issued his interest arbitration decision and ordered the implementation of a salary progression freeze for the Correctional bargaining unit in 2016 and in 2017 (i.e., same as the Unified bargaining unit). Arbitrator Burkett also imposed special wage adjustments of three per cent for correctional staff and two per cent for probation staff. 18 Table Talk, Issue 43 dated January 9, 2016, Tab 8, page 2. 19 Submissions of the Union in the Matter of an Arbitration between OPSEU and the Crown dated March 28, 2016, Tab 3, pages 13-15. 20 See excerpts of the Employer’s Interest Arbitration Submissions: “Introduction” Section at Tab 9, pages 1-2, 9; “The Free Collective Bargaining Principle Applicable to Interest Arbitration – The Replication Principle” Section at Tab 10; and “Issue 1: Progression Through the Salary Grid” Section, Tab 11, page 1. - 9 - 26. In the decision, Arbitrator Burkett stated:21 The "net zero" threshold is met with the 2015 wage freeze, the 2016 1.4% lump sum payment and the 2017 1.4% across-the-board increase with the negotiated cost containments relating to LTIP, termination pay and WSI benefits along with the freeze to progression through the ranks. 27. As a result of Arbitrator Burkett’s decision, the parties appended Appendix COR38 dated May 26, 2016 to the OPSEU 2015-2017 Correctional Collective Agreement. Appendix COR38 stated:22 Re: Letter of Understanding Salary Progression Freeze The parties agree that notwithstanding any other article in the collective agreement, all employees’ salary rates as of January 1, 2016 shall be fixed at that rate and no employee shall be entitled to any salary progression from January 1, 2016 to December 31, 2017. Employees hired or appointed into positions in the OPSEU bargaining unit during the term of the collective agreement shall have their salary fixed at the salary rate received upon hire or appointment and shall not be entitled to any salary progression for the duration of the collective agreement. August 18, 2016 Decision 28. On July 18, 2016, OPSEU made supplementary submissions to Arbitrator Burkett regarding disputed implementation issues. With respect to the salary progression freeze, the issue was whether the salary progression freeze in 2016 (i.e., “no employee shall be entitled to any salary progression from January 1, 2016…”) was effective January 1, 2016 or from the date of the Award (May 26, 2016).23 The Employer filed its response to OPSEU’s supplementary submissions on July 26, 2016.24 29. On August 18, 2016, Arbitrator Burkett released his supplementary award. In the decision, he clarified that the salary progression freeze should apply 21 Arbitrator Burkett Interest Arbitration Award dated May 26, 2016, Tab 12, page 4. 22 2015-2017 Collective Agreement, Appendix COR38, Letter of Understanding, “Salary Progression Freeze” dated May 26, 2016, Tab 1, page 498. 23 Supplemental Submission of the Union in the Matter of an Arbitration between OPSEU and the Crown, dated July 18, 2016, Tab 13, pages 3-4. 24 Employer Response to OPSEU Supplemental Submission, dated July 26, 2016, Tab 14, pages 4-5. - 10 - to the entire calendar years of 2016 and 2017; that affected employees would be reverted back to the previous step in the grid (i.e., those employees who had received a merit increase in 2016 prior to the date of his Award); and that those same employees be required to repay any overpaid wages. In his decision, the Arbitrator stated:25 It is clear from the rationale used to support the awarding of the grid freeze effective for 2016 and 2017 (i.e. replication of the net zero public sector bargaining pattern which included the grid freeze) that the freeze would apply across the board. THE JANUARY 1, 2018 TO DECEMBER 31, 2021 DEALS 30. On June 2, 2017, the Employer and OPSEU reached tentative extension agreements (or “rollover”) for both the Unified and Correctional Bargaining Units. The parties agreed that the terms for both the Unified Collective Agreement and for the Correctional Collective Agreement, if ratified, would be from January 1, 2018 to December 31, 2021. 31. The Unified and Correctional Bargaining Units had negotiated their own respective tentative extension agreements.26 32. Pursuant to changes to the Crown Employees Collective Bargaining Act, 1993 effective December 2016, the Correctional Bargaining Unit had a standalone collective agreement and access to interest arbitration in lieu of the right to strike in the event of a collective bargaining impasse. Rollover Ratification 33. On June 11, 2017, the Union released a “Notice of ratification vote”, stating:27 OPSEU members in the Ontario Public Service (OPS) will vote June 20, 21 and 22 on a government offer to “roll over” their existing collective 25 Arbitrator Burkett Interest Arbitration – Supplementary Award, Tab 15, page 4. 26 Extension Agreement between the Crown and OPSEU applicable to the Unified Bargaining Unit, dated June 2, 2017, Tab 16. 27 OPSEU Notice of Ratification Vote, dated June 11, 2017, Tab 17. - 11 - agreements with a number of positive changes – and no demands for concessions from OPSEU members. 34. On Friday June 16, 2017, OPSEU posted a notice to their website titled “OPS Tentative Agreements – Questions and Answers”.28 The posting contained a series of questions and answers, related to the Employer’s June 2, 2017 extension offer. 35. Question 1 of the posting is stated: “Which appendices in the current collective agreement are being renewed?”. The answer to Question 1 is stated as follows: All Appendices will be renewed with the following exceptions: - Appendix UN8 & Appendix COR 38 – Salary Progression Freeze Employees will begin to progress through the grid as of January 1, 2018 from where they were fixed on the grid on January 1, 2016. - Appendix COR33 – Administrative Compensating Leave The current Appendix ends on December 31, 2017. 36. OPSEU also held a telephone town hall for its members.29 37. On June 22, 2017, Unified Bargaining Unit members voted to ratify the Unified Bargaining Unit extension agreement. The Parties promulgated a Unified Salary Schedule, appended to the 2018-2021 Unified Collective Agreement.30 38. On June 22, 2017, Correctional Bargaining Unit members voted to reject the Correctional Bargaining Unit extension agreement. Consequently, the 28 OPSEU OPS Tentative Agreements, Questions and Answers, Tab 18. Note that in accordance with Article 6.4 of the OPSEU Policy Manual, “OPS members shall receive a written summary of the proposed contract changes, … a summary of the issues and/or offer to be voted on summary of the proposed contract changes” (see OPSEU Policy Manual, Negotiations, Section 18, Article 6 (excerpt), Tab 5). 29 Town Hall Transcript (excerpts), Tab 19, e.g., see pages 3, 5-6. And see Articles 6.2 & 6.5 of the OPSEU Policy Manual, Negotiations, Section 18, Article 6 (excerpt), Tab 5 30 Unified Salary Schedule, Appendix A to the 2018-2021 Unified Collective Agreement (excerpt), Tab 20. - 12 - Employer and OPSEU commenced collective bargaining for a Correctional Bargaining Unit Collective Agreement on December 5, 2017. 2018 Reintroduction of Salary Progression 39. On February 26, 2018, the Employer began implementing salary progression effective January 1, 2018. As announced to all OPSEU represented employees on January 24, 2018 in the HR Communicates publication, under the heading “Reinstatement of salary progression: OPSEU”:31 The salary progression freeze that was in place for employees in OPSEU’s Unified and Correctional bargaining units ended on December 31, 2017. Eligible employees who are not at the maximum rate of their salary range will move to the next step of the range on their anniversary date. As of January 22, managers are able to begin processing their staff’s merit increases in WIN. This includes the processing of January 1, 2018 merit increases so that retroactive adjustments can be made. 40. Thus, if an employee was not at the maximum rate of his or her salary range as of January 1, 2018, then he or she was eligible to progress to the next step of the salary range from where he or she left off before the freeze in salary progression, on his or her anniversary date. THE GRIEVANCES 41. In a Union Grievance dated August 24, 2017 (GSB #2017-2895), the Union grieved that the Employer’s salary progression implementation contravened the 2015 – 2017 Unified Collective Agreement. The Union alleged:32 The Union grieves that the Employer’s proposed manner of implementing salary progression starting January 1, 2018 will violate Appendix UN8, Article UN16 of the collective agreement and any other article, appendix, law or legal concept that may apply, including but not limited to the case law surrounding salary progression, and would undermine the salary grids 31 HR Communicates, “Reinstatement of salary progression: OPSEU” dated January 24, 2018, Tab 21. 32 Union Grievance, dated August 24, 2017 (GSB #2017-2895), Tab 22. - 13 - promulgated under UN16, as Employees will not be placed on the wage grid based on service and proficiency. 42. In a Union Grievance dated February 12, 2018 (GSB #2017-3879), the Union grieved that the Employer’s salary progression implementation contravened the Correctional Collective Agreement applicable to employees “employed by [the] Ministry of Community Safety & Correctional Services”. The Union alleged:33 The employer is in violation of the Collective Agreement Articles 2, 3, 7, 9, 10, 18, 20, 31, Appendix UN8, Appendix COR38, of the collective agreement and any other article/legislation deemed fit including any other act that governs the salary progression freeze of January 1, 2016 – December 31, 2017; The employers implementation of salary progression starting January 01, 2018 violates the C.A. Appendix UN8 and Appendix COR38, including but not limited to the case law surrounding salary progression, and would undermine the salary grids promulgated under UN16, and Appendix COR39, as Employees would not be placed on the wage grid based on service and proficiency. All regular straight time hours worked during the salary progression freeze should be counted towards Employees merit increases. 43. The Union has provided seven anonymized “scenarios”.34 2019 COR INTEREST ARBITRATION EPILOGUE 44. After engaging in collective bargaining towards a Collective Agreement, the parties proceeded to interest arbitration before Arbitrator Kaplan to decide outstanding matters with respect to the Correctional Bargaining Unit Collective Agreement. 45. The Parties submitted interest arbitration briefs35 and the Interest Arbitration hearing occurred on March 30, 2019. 46. On April 1, 2019, Arbitrator Kaplan issued his Award.36 33 Union Grievance, dated February 12, 2018 (GSB #2017-3879), Tab 23. 34 Anonymized Union Scenarios, Tab 24. 35 OPSEU Interest Arbitration Brief, dated March 25, 2019, Tab 25; Employer Interest Arbitration Brief, dated March 25, 2019, Tab 26. - 14 - [4] As reflected in the ASF, the provisions in the 2015-2017 Unified and Correctional CAs relating to salary progression are the same. And although the ASF does not set out the details of Arbitrator Kaplan’s award for the CBU, it is worth noting that the provisions of the 2018-2021 Unified and Correctional CAs relating to salary progression are also the same. [5] There is no dispute about how salary progression usually works under the relevant Collective Agreements. Each Collective Agreement has a salary schedule that places a classification on a salary grid. For example, the first classification identified on the Unified Salary Schedule in the 2015-2017 Unified CA is that of Accident Claims Supervisor 1 (“ACS 1”). The vertical columns on the salary grid for this classification provide for two across the board increases. The horizontal columns represent the salary progression range with a number of steps. The ACS 1 classification has 7 steps and each step represents a wage increase of 3%. An employee will typically start in a classification at the first step and will progress to the second step on the employee’s anniversary date after one year in the position, and each year thereafter will move to the next step on the employee’s anniversary date until the maximum step is attained. It will take an employee in the ACS 1 classification 6 years to progress to the maximum step in the salary progression range. As a general rule and until the maximum step has been reached, an employee with greater service in a classification will be paid a higher salary than an employee who has spent less time in that classification. As noted above, the salary progression steps for each classification are in the salary schedule of each Collective Agreement. How salary progression works is determined by Employer policy as contained in the Merit Increases Directive that is referenced in a footnote in paragraph 4 of the ASF. This policy, of course, is subject to the terms of the Collective Agreements. [6] The way salary progression usually works was altered by a salary progression freeze for the UBU and the CBU during last two years of the 2015-2017 Collective Agreements. The Employer bargained for the salary progression freeze to 36 Arbitrator Kaplan Interest Arbitration Award, dated April 1, 2019, Tab 27. - 15 - help achieve its goal of “net zero” compensation increases for that round of bargaining. The identical provisions that provided for the salary progression freeze are set out in paragraph 15 of the ASF for the Unified CA and in paragraph 27 of the ASF for the Correctional CA. The language in these provisions indicates that salary rates are fixed as of January 1, 2016, and that no employee was entitled to salary progression for 2016 and 2017. The same applied to employees who were hired or appointed into bargaining unit positions during the three year term of the Unified and Correctional CAs. For example, employees who were at step 2 of the salary progression range for their classification before January 1, 2016, did not move to step 3 on their anniversary date in 2016 and they did not move to step 4 on their anniversary date in 2017. As well, an employee hired at step 1 of a classification during the term of the relevant 2015-2017 Collective Agreement remained at that step for the three year term of the Collective Agreement. These examples indicate the financial impact on employees of the salary progression freeze for those who were not at the maximum step of the salary progression range. [7] The salary progression freeze ended with the expiry of the 2015-2017 Unified and Correctional CAs. The UBU members ratified an extension agreement on June 22, 2017, well before the then current Unified CA expired. The salary progression freeze was not rolled over into the extension agreement. Outstanding matters were taken to interest arbitration for the CBU. The Union raised the subject of salary progression before Arbitrator Kaplan, but he elected not to address the issue. A number of across the board increases were added to the salary grid in each Collective Agreement and a salary progression step was added. The Union was successful in securing financial gains for its members through the extension agreements. It is noteworthy that the extension agreements did not alter the basic salary grid structure under the 2018-2021 Unified and Correctional CAs. And there were no provisions added to these Collective Agreements which specifically addressed how salary progression would be resumed once the salary progression freeze had ended. [8] The Employer advised bargaining unit employees in January of 2018 that the salary progression freeze had ended on December 31, 2017, and that eligible - 16 - employees would move to the next step of the salary progression range on their anniversary date if they were not already at the maximum rate for their classification. The Employer maintained in this proceeding that this way of resuming salary progression was consistent with its obligations under the Unified and Correctional CAs. An example of the practical effect of the Employer’s approach is that an employee with a December anniversary date who was at step 2 of the salary grid prior to the start of the salary progression freeze on January 1, 2016, would move to step 3 of the salary grid in December of 2018. [9] The Union’s perspective on how salary progression should have resumed under the Unified and Correctional CAs after the salary progression freeze ended is significantly different from the Employer’s position. It took the position that once the salary progression freeze ended, an employee should have moved immediately to the step on the salary grid that the employee would have moved to but for the freeze, and then continue to progress thereafter in the normal course. Therefore, an employee at step 2 of the salary grid prior to the salary freeze, who missed moving to steps 3 and 4 on the salary grid because of the two year salary progression freeze, should have moved immediately to step 4 of the wage grid on January 1, 2018, since the employee would have been at that step if there had not been a freeze. After that adjustment, the Union maintained that the same employee should move to step 5 of the salary grid on his or her anniversary date in 2018. Therefore, taking this example, the Union’s view is that the Employer was required to move an employee three steps in total on the salary grid in 2018 if the employee was at least three steps away from the maximum step of the salary grid. [10] The Union made essentially two submissions to support its position that the way the Employer handled salary progression after the lifting of the salary progression freeze was inconsistent with its obligations under the Unified and Correctional CAs. These submissions were based on the nature of the salary progression structure as set out in the salary schedule in each Collective Agreement. Union counsel emphasized that the key features of that structure are the regular movement to higher steps and a higher salary on an employee’s anniversary date based on length of service in a - 17 - classification. Counsel’s first submission was that the salary progression freeze had an end date of December 31, 2017, and once the freeze was lifted the Employer was obliged to recognize that employees continued to work in their classifications during the two years of the salary progression freeze and move them two steps on the salary grid on January 1, 2018, consistent with their length of time in the classification and the concept of salary progression. Counsel noted that the Employer obtained salary savings during the two year salary progression freeze and argued that the Employer did not bargain for language that would give it a continuing benefit beyond the two year salary progression freeze. Counsel noted that under the Employer’s approach, an employee who missed two steps during the freeze would continue to lag behind and feel the impact of the salary progression freeze until they reached the maximum step of the salary grid. Union counsel argued that, in contrast to the Employer’s approach, the Union’s position meant that the effects of the salary progression freeze were limited as much as possible. Union counsel also submitted that the Union’s position was more consistent with the plain meaning of the language in the Unified and Correctional CAs. [11] The Union also took the position that the way the Employer resumed salary progression once the salary progression freeze was over disrupted the usual operation of the salary progression system and led to unfair and absurd results. Union counsel noted that the impact of the salary progression freeze varied because employees had different anniversary dates. Counsel referred to examples of that impact and also to a Union created document setting out salary progression freeze scenarios to illustrate how some employees were affected by the Employer’s method of resuming salary progression. Without referring to the details of the examples given, the point of the exercise was to illustrate that senior employees were earning the same or less than employees with less service in the same classification for a certain amount of time. Union counsel noted that it was unfair that an employee with a December anniversary date coming out of the two year freeze had to wait almost a year to get the next merit increase. It was noted that an employee hired in March of 2016 would get a merit increase in March of 2018 by moving to step 2 of the salary progression range, while a more senior employee hired in December of 2015 would not move to step 2 until December of 2018. Counsel argued that the unfair and absurd results arising from the - 18 - Employer’s way of resuming salary progression did not favour the Employer’s interpretation of the relevant language in the Collective Agreements, but did support the Union’s interpretation of that language because its interpretation did not lead to these unfair and absurd results, and it recognized the length of service that employees had in their classifications. [12] In the last part of her submissions, Union counsel indicated that there were at least thirteen documents in the Book of Documents that I should not consider. Counsel submitted that the relevant language in the Unified and Correctional CAs was clear and unambiguous, and that the documents the Employer wished to rely on were not relevant and not useful for contextual purposes. Without detailing the content of these documents, I simply note that they were different types of Union documents, such as an OPSEU Policy Manual, internal Union communications to members on bargaining issues, interest arbitration briefs and a transcript of a Town Hall event which recorded exchanges between Union representatives and members on the issue of salary progression. Referring to each of the challenged documents, Union counsel argued that they would not be of assistance in resolving the interpretation issue that was at the heart of the dispute before me. [13] Union counsel relied on the following decisions in support of the Union’s position: Re Sun Country Regional Health Authority and HSAS (Rogers) (2015), 255 L.A.C. (4th) 254 (Ponak); OPSEU (Hymers et al.) and Ontario (Ministry of Natural Resources), 2003 CanLII 52916 (ON GSB) (Kirkwood); Re DHL Express (Canada) Ltd. and CAW-Canada, Local 4215 (2004), 124 L.A.C. (4th) 271 (Hamilton); Ontario Power Generation and Society of Energy Professionals, 2015 CanLII 32020 (ON LA) (Surdykowski); Re Ontario Power Generation Inc. and Society of Energy Professionals (Sloan) (2017), 283 L.A.C. (4th) 302 (Stout); Re Cancoil Thermal Corp. and UFCW, Local 175 (2017), 284 L.A.C. (4th) 76 (Gee); Tung-Sol of Canada Ltd. and United Electrical, Radio and Machine Workers of America, Local 512 (1964), 15 L.A.C. 161 (Reville); OPSEU (Gagne et al.) and Ontario (Liquor Control Board of Ontario), 2007 CanLII 30447 (ON GSB) (Dissanayake); Re Northern Telecom Canada Ltd. and United Automobile Workers, Local 1525 (1983), L.A.C. (3d) 224 (M. Picher); Re Brant County - 19 - Health Unit v. O.N.A., Local 007, 1997 CarswellOnt 7255 (Haefling); Re AUPE and Alberta Health Services (Pess) (2017), 284 L.A.C. (4th) 166 (McFetridge); Kingston (City) Re Rideaucrest Home for the Aged v. O.NA., 2004 CarswellOnt 3617 (Nairn); Assn. of Law Officers of the Crown v. Ontario (Management Board of Cabinet) (Salaries Grievance), [2000] O.L.A.A. No. 790 (Kaplan); Re N.S.T.U. and Nova Scotia (Minister of Education and Culture) (1999), 79 L.A.C. (4th) 1 (Christie); and, N.S.T.U. v. Nova Scotia (Minister of Education & Culture), 2000 NSCA 66. [14] Employer counsel submitted that there should be no dispute about the meaning and effect of a salary progression freeze. He noted that no employee was entitled to salary progression from January 1, 2016 to December 31, 2017, and that salary rates were fixed as of January 1, 2016. Counsel provided dictionary definitions for the words “fixed” and “progression”. Counsel submitted that once the salary progression freeze ended, the usual process of salary progression was to be resumed, unless the parties agreed otherwise. Counsel submitted that the usual process of salary progression provided for in the Unified and Correctional CAs consisted of an annual movement to the next step of the salary progression range on an employee’s anniversary date. [15] Counsel submitted that there was no language in the Unified and Correctional CAs to support the contention that the parties had agreed to a different salary progression system. He argued that it was the Union’s position that provided for absurd and unfair results that could not be justified by any contractual language or by a valid labour relations rationale. Counsel noted that the movement of three steps by eligible employees on the salary grid in 2018, with each step representing a 3% increase, would amount to an additional cost to the Employer of $30 million. Counsel argued that there was simply no language in the Unified and Correctional CAs that would allow employees who received no merit increases because of the salary progression freeze to immediately recover their missed steps on the salary grid once the salary progression freeze had ended. He also noted the absence of any language to support salary progression by moving more than one step on the salary grid and at a time different from an employee’s anniversary date. Counsel submitted that arbitrators - 20 - have consistently held that monetary benefits cannot be inferred, but must be derived from clear language in the collective agreement. Counsel argued that there was a complete absence of any language in the relevant Collective Agreements that would support the salary progression claim that the Union was seeking for its members in the instant case. [16] The Employer conceded that there was some disruption to the salary progression scheme with a two year salary progression freeze and that there would be residual effects after the freeze. However, counsel submitted such a disruption and the residual effects were inherent in a salary progression freeze and did not give any support to the Union’s interpretation of the relevant contractual provisions. [17] Employer counsel spent some time reviewing the documents which the Union had argued were either not helpful or not relevant. Employer counsel argued that a few of the significant documents illustrated that the communication from the Union to its members about how salary progression would resume after the salary progression freeze ended is consistent with the Employer’s position. Counsel argued that these documents were relevant and provided a useful contextual framework for determining the intention of the parties on the issue of salary progression. [18] In support of the Employer’s position, Employer counsel referred me to the following decisions: Re Ontario Power Generation and Society of Energy Professionals, 2012 CarswellOnt 16996 (Surdykowski); OPSEU (White et al.) and Ministry of Community Safety and Correctional Services (2019), GSB Nos. 2015-3083 et al. (Petryshen); Re Keller Foundations Ltd. and IUOE, Local 870 (2014), 249 L.A.C. (4th) 283 (Wallace); OPSEU (Vitorino et al.) and Ministry of Government Services (2010), GSB Nos. 2009-1293 et al. (Abramsky); Re Compass Minerals Canada Corp. and Unifor, Local 37-0 (2017), 284 L.A.C. 4th 54 (Surdykowski); AMAPCEO and Ministry of Government Services (2014), GSB No. 2013-2311 (Herlich); Re Prince Edward County Board of Education and Health, Office and Professional Employees, Local 175, 1996 CarswellOnt 6464 (Starkman); Re City (Toronto) and CUPE, Local 79, 1998 CarswellOnt 7519 (Davie); Re Air Canada and Air Canada Pilots Assn., 2012 - 21 - CarswellOnt 4390 (Burkett); Re Waterloo Region Record and Unifor, Local 87-M (Davis), 2014 CarswellOnt 16763 (Hayes), Re Ontario (Ministry of Labour) and OPSEU (Anthony), 2005 CarswellOnt 10941 (Abramsky); and, N.S.T.U. v. Nova Scotia (Minister of Education & Culture) (2000), 184 N.S.R. (2d) 110 (NSSC). [19] After reviewing the facts and considering the submissions of counsel, I find that the Employer’s position on the Union grievances has considerable merit. I agree with Union counsel that the terms of the 2018-2021 Unified and Correctional CAs relating to salary progression are clear and unambiguous. I therefore found it unnecessary to rely on the documents objected to by the Union in reaching my conclusions. I took this approach recognizing that these documents might very well provide a relevant and contextual framework for analyzing this bargaining relationship and the issue in dispute in this case. However, to the extent that grievances can be addressed without resort to extrinsic evidence, I believe the best approach is to rely only on the relevant language in the Collective Agreement, which is what I have done in this case. [20] The different positions taken by the Employer and the Union reflect different views of what a salary progression freeze is and its consequences, as well as different views about how salary progression is structured under the Unified and Correctional CAs. The Union’s position reflects a view that the loss of moving two steps on the salary grid during 2016 and 2017 can be recovered immediately once the salary progression freeze ended and that this is possible under the salary progression system under the Unified and Correctional CAs. The Union’s position is inconsistent with the concept of the salary progression freeze that was in effect in 2016 and 2017, and the salary progression system adopted by the parties in the relevant Collective Agreements. The salary progression freeze for an employee who was not at the maximum step of the salary range resulted in no movement along the salary grid on the employee’s anniversary date for two years. The employee’s salary progression therefore was suspended for two years and the employee’s service in his or her classification for those two years was not recognized in the usual way for salary progression purposes. Once the salary progression suspension came to an end, the most probable result in line with - 22 - the Employer policy on salary progression and the language of the relevant Collective Agreements is that salary progression would resume in the usual way from an employee’s current step on the salary grid. In my view, a finding in favour of the Union’s position would have the effect, at least in part, of negating the purpose of the two year salary progression freeze. The fact that an employee affected by the salary progression freeze would experience a lag in moving forward on the salary grid until the employee reached the maximum step of the salary progression range is the inevitable result of a salary progression freeze. [21] The parties to the Unified CA agreed to the monetary benefits that would be included in the extension agreement. Arbitrator Kaplan determined what the monetary benefits would be for the Correctional CA. Although Union counsel made a valiant effort to convince me otherwise, there is no language in the relevant 2018-2021 Collective Agreements on salary progression that would support the Union’s position in the instant case. As arbitrator Surdykowski noted in Re Ontario Power Generation and Society of Energy Professionals, supra, the words that are absent from the parties’ written agreement can be significant. There is no language in the Unified and Correctional CAs to indicate that the parties intended that employees would recover any salary progression steps suspended during the salary progression freeze immediately after the freeze ended. And there is no language in these Collective Agreements to indicate that the parties intended to alter the salary progression system which provided for the movement of one step annually on the salary grid on an employee’s anniversary date to a different salary progression system. I agree with the arbitral consensus that monetary benefits are not to be inferred or implied, and must be supported by clear language in the collective agreement. There is no clear language in the Unified and Correctional CAs to provide that an employee would receive a 6% salary increase on January 1, 2018, because the employee’s movement on the salary grid had been suspended for two years due to the salary progression freeze. [22] Finally, I agree with Employer counsel’s submission that any unfairness or absurd results relied on by the Union in support of its position were inherent in a salary progression freeze and a salary progression system where movement to the next step on the salary grid occurs on an employee’s anniversary date. The parties were in a - 23 - position to anticipate what the results of a salary progression freeze would be. The unfairness and any absurd results referenced by the Union during its submissions do not assist the Union in advancing its interpretation of the relevant provisions in the Unified and Correctional CAs. [23] For the foregoing reason, I find that the Employer did not contravene the Unified and Correctional 2018-2021 Collective Agreements with respect to the way it resumed the process of salary progression after the salary progression freeze ended on December 31, 2017. Therefore, the Union grievances dated August 24, 2017, and February 12, 2018, are hereby dismissed. Dated at Toronto, Ontario this 11th day of March, 2020. “Ken Petryshen” Ken Petryshen, Arbitrator