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HomeMy WebLinkAbout1980-0443.Szalonczay.81-06-23Between : !.I?2 . L. Szalocczay - And - The Crown in Right cf Onz?.riO (Yinis:ry of Transporrarion 3; I Cxnmucications zm~:oye'r Before: For rhe Grievor: For the Employer: R. A. UcLaren !<I . X. Perrin. F. T. Collict Vice C3airman !,!ember !,iember x. hand, Ccunsel Cameron, Brewin Sr SdOtT 0. S. Bagel Senior Staff Relatiocs Ofi~icer Civil Service Ccfmxissi!ln 3earing: ,!pril 23, lOJ1 AWARD ----- The subject matter of this award involves a grievance by Mr. Szalonczay alleging that he was entitled to receive a salary increase under the provisions of the 1979 collective agreement. The.parties submitted an agreed statement of fact which was supplemented by viva vote evidence.. The salient facts are not in dispute and are set out below. On December 31, 1978, the Grievor was a Clerk 5 with the Ministry of Transportation and Communications. He was earning the maximum rate in that classification and on January 1, 1979, received the increase for that classification in accordance with Article Z(a) of the 1979 Clerical Services Agreement. In 1980, certain retroactive decisions were taken by the Employer. Retroactive to March 1, 1979, the addition of certain job responsibilities had caused the Employer to re- classify the position in which the Grievor worked to that of a Clerk 6, General. That particular classification was not included within the scope of the 1979 collective bargaining agreement between the parties. In June of 1979, the parties by mutual agreement added a new classification to the provisions of the collective agreement known as Clerk 6, General. The Grievor Chim.5 entitlement to a salary increase effective July 1, 1979 in accordance with Article 2(b) of the Clerical Services Agreement dated April 24, 1979, effective January 1, 1979. . ARGUMENT : It is argued on behalf of the Union that the Grievor is entitled to a salary increase of 3 percent (3%) as required by Article 2(b) of the collective agreement for the year 1979. It is argued that the c~alculation cannot be done as required by Article 2(b) and, therefore, the appropriate category to, use is that of the Clerk 6, General (Code Sl?JlO) job classification which because of certain provisions of The Crown Employees Collective Bargaining Act, remains outside of the bargaining unit. It is argued in support of the Employer's position that the fact that there was no.category of Clerk 6 in existence on December 31, 1978, meant that there was an impossibility in calculating any entitlement, if indeed there was an entitlement to an increase under the terms of the collective agreement. The relevant provisions of the collective agreement read as follows: "The parties hereto have agreed to all matters in dispute and to the following terms in respect of the Clerical Services Category: 1. Term One (1) year, effective from January 1, 1979 to December 31, 1979. I ../ 2. Salaries (a) Effective January 1, 1979, an increase of $5.50 per week to all classifications in this category based on then salary rates in effect on December 31, 1978, plus an increase of 3.4%. (b) Effective July 1, 1979, a further increase of 3% to all classifications in the category based on the salary rates in effect on December 31, 1978. (c) Rates of pay for all classifications, resulting from the application of the increases set out in (a) and (b) above, are attached as Appendix A. . . . ISSUES: Is the Grievor entitled to the salary increase provided by Article 2(b)? If so, can that increase be calculated? DECISION: A determination was made in June, 1979, that there should be an equivalent or parallel class of Clerk 6, General (B.U.). A number of jobs were considered to be appropriately within thatclassification under the criteria established by The Crown Employees Collective Bargaining Act. Therefore, a new classification not previously in existence, in the collective agreement between the parties,was incorporated irito the agreement retroactive to April 1, 1979. Pursuant to the working conditions agreement Clause 5.8, the 'salary range for the new job classification was established taking account of all factors including recent . . ’ . rises to the Clerk 6, General non-bargaining unit classification. There is no dispute that the threshhold rate for the new classification was not properly determined. The Grievor was affected by all of these events when his job was retroactively determined to be properly reclassified as a Clerk 6 effective March 1, 1979. Of course, this decision was made after the expiry of the collective agreement but it had the effect of making the Grievor uncovered by the collective agreement until March 31, 1979 and then covered by the new classification of Clerk 6, General (B.U.). The result is that one must look through two prisms of retroactivity to get c~larity of insight. When the parties put a new classification into the collective agreement, it must have been on the basis that.the collective agreement was to apply to all the individuals within that classification. Therefore, Article 2(b) must establish an entitlement to an increase of 3 percent (3%) because on the language of the Article the Clerk 6, General (B.U.) is a' 5. classification in "this category" namely "Clerical Services Category". The difficulty is that the method of determining the amount of entitlement is to apply a percentage to a classification and salary rate derived from an appendix to the previous year's collective agreement. Of course, there was no such category. The Employer states that it must follow that there is no increase. The parties obviously could not direct their minds to this problem when the agreement was executed in April of 1979. . . i . b. They did-direct their minds to the appropriate salary level to introduce people to the provisions of the collective agreement when the new classification was established. The Grievor only found out that he was in a category covered by the new collective agreement in.January of 1980 after it had expired. This grievance resulted. ':' The parties could not have used language in the collective agreement to deal with the matter because they did not know that these two retroactive events would transpire. The collective agreement is, therefore, silent and the parties have not directed their minds to the problem before this Board. In effect, there is a gap in the collective agreement. The gap can only be dealt with not by either party standing on a literal interpretation of the collective agreement but by looking to the closest 'equivalent provision which will satisfy the meaning and intent of Article 2(b). That must be to look to the salary paid to a Clerk 6, General, which is not covered by the collective. agreement. Therefore, for purposes of determining the amount by which the Griever's salary should be increased, the. 3% figure must be applied to the appropriate step in the salary grid for a Clerk 6, General non-bargaining unit in effect on December 31, 1978. The Grievor is, therefore, entitled to the 3% rise to be paid on July 1, 1979, payable under the terms of the collective agreement until the end of December, 1979. That entitlement for this Grievor does not mean that the negotiated rates for 1980 for the classification will change. The parties 7 . ., : renegotiated their bargain and struck a new one with entitlement rates. This decision, therefore, does not have effect except to answer the particular Grievor's grievance. By agreement of the parties, the Board retains juris- diction to determine the appropriate, amountof compensation to be paid to the Grievor in the event that the parties are unable to agree as to the correct amount. It is ordered that the Grievor be paid the salary increase found to be required by Article 2(b); to be.:determined in the fashion set out in this award. DATED AT LONDON, ONTARIO, this 23rd day ofJune, 1981. M. M. Perrin; Member "I dissent" (See attached) F. T.Collict, Member _. ‘ A I .’ May 29, 1981. RE: FILE #443/80 I dissent with the majority award. The majority position states at page 6 that - "The collective agreement is, therefore, silent and the parties have not directed their minds to the problem before this Board. In effect, there is a gap in the collective agreement.“ If it is agreed that the Agreement is silent on the subject matter, it is the minority position that the Board cannot rectify the I, . . . . . . gap in the collective agreement." (p. 6) by looking II . . . . . . to the salary paid to a Clerk 6 General which is not covered by the collective agreement." (p. 6) With reference to the Doctrine of Rectification, 'Prof. Palmer at page 126 of Collective Agreement Arbitration in Canada has stated the following: "Several cases hold that where'the parties, through mutual mistake, have ormtted.certain essential prz- visions, inadvertently transposed articles, rn- Bdvently added a clause, or adopted language which did not express the real mutual agreement of the parties, the arbitrator can rectify the aqree- ment. The condition for application of the doctrine in these cases i.s that there be an actual, mutual agreement reached which is not expressed as intended in the final written document. There is a heavy. onus on the party seeking rectification to show this condition exists." (p. 126) (underscoring added) , Certainly such mutual agreement did not obtain in this case. The parties clearly negotiated a new classification into the agreement but they II . . . . . . omitted certain essential provisions . . ..." These were the provisions which would have provided for the 3% / b’ -. 2. adjustment in salary effective July 1, 1979, as claimed by the grievor. For the grievance to succeed, clear language such as the following would have been required: "Effective July 1, 1979, a further increase of 3% to all classifications in this category based on the salary rates in effect on Dec- ember 31, 1978, including any additional classi- fications negotiated by then parties throughout the life of this Agreement." (underscoring added) The above underscored language is that which the parties might have negotiated into the Agreement at the time the classification of Clerk 6,~ General (B.U.) was negotiated into the Agreement, but this they did not do. - It must be argued further that clauses should not be implied into an agreement. Prof. Palmer at page 104 of Collective Agreement Arbitration in Canada states that - "The implication of a clause into a collective agreement as a matter of law should be restricted and onlydone under the clearest of circumstances. This is so, of course, because the role of an arbitrator is to construe the agreemen.t as it stands, not to create a new one for the parties." (p. 104). we are not faced here with a condition involving (I..... the clearest of circumstances . .." Management was of the opinion that the classification had received the appropriate salary in- creases to which it was entitled commensurate to those given in the bargaining unit prior to the establishment of the new Clerk 6, General (B.U.) classification. Additionally, witness W. Gorchinsky stated that it was never intended that anyone in the new Clerk 6, General (B.U.) classification should be entitled to a "windfall" . On the other hand, the Union at no time throughout the life of the 1979 Agreement protested 3. the failure of Management to apply the 3% July 1, 1979, in- crease to the Clerk 6, General (B.U.) classification. In fact, the Union even negotiated a new 1980 Agreement based upon the 1979 rates. It was only when the griever was re- classified to the Clerk 6,.General (B.lJ.1 classification in January of 1980 that the grievance arose. The implication of a provision into the Agreement in this particular case certainly would not be "..,. under the clearest of circumstances" and, therefore, should be restricted. It is the minority position that it is the role of the Board to interpret the Agreement between the parties as it stands: and that it is not the role of the Board to impute some other provisions into the Agreement which certainly were not contem- plated by either party at the time the new classification was negotiated into the Agreement. Finally, the concept of estoppel would appear to have appli- cation in this case. The argument of estoppel was not advanced during the hearing. However, Professor Palmer at page 117 of Collective Agreement Arbitration in Canada comments as follows: "It has been held that an arbitrator has juris- diction to apply the doctrine of estoppel to interpretation of a collective agreement whether or not there is ambiguity . . ..I Moreover, Adams in (1974) 6 L.A.C. (2d)~ 137 at page 137 stated the following: I . . . . For all of these reasons a labour arbitrator does possess sufficient remedial authority to apply the doctrine of promissory estoppel in appropriate circumstances." Specifically with reference to the facts in the case it would appear that by record, by deed and by conduct the Union has negotiated two Collective Agreements following the 1979 Agree- 4. ment and has had every opportunity to correct the alleged failure of Management to provide a 3% salary increase to the subject classification. It is a matter of record as set out in Exhibit VI that the "Old Rate" for Clerk 6, General (B.U.) at level 3 is $329.64 per week. Based upon this rate which, presumably has some specific arithmetic relationship to Clerk 5, General (B.U.) and Clerk 7, General (B.U.), the parties negotiated new rates into the 1980 Agreement. Ob- viously, Management has engaged in a "detrimental reliance" upon the rates set out in the 1979 Agreement as the basis for negotiation of the new 1980 rates - a reliance which, as stated by Brown at p. 312 (19761, 10 L.A.C. (2d) 307, II . . . . . is an essential ingredient in the application of the doctrine of estoppel." ,_ Both parties in good faith negotiated the Clerk 6, General (B.U.) classification and rate into the 1979 Agreement. Sub- sequently both parties negotiated a 1980 Agreement which included a renegotiation of the Clerk 6, General (B.U.) rate. The Union, therefore, is now estopped from claiming that a general increase in accordance with paragraph 2 (b) -has not been properly applied to a classification. In view of the above, I would have dismissed the grievance.