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HomeMy WebLinkAbout1982-0564.OPSEU.84-03-12564182 (Second Interim Decision) IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Clerk 6,.General) - And - Grievors The Crown in Right of Ontario (Management Board of Cabinet) Employer J.P.W. Weatherill Chairman P. Craven Member E.R. O'Kelly Member For the Grievor: R. Anand, Counsel Laskin, Jack & Harris For the Employer: L. McIntosh,. Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: January:S, 1984 -2- INTERIM. DECISION (Second) The question now before the Board in this matter is: What are the correct rates of pay to be paid to the grievers pursuant to the 1982-1983 "category agreement" (sometimes referred to for convenience as the collective agreement) governing the Clerical Services category? The grievers are in the classification Clerk 6 General (Bargaining Unit), and as such are governed by the Clerical Services category agreement, in which the collective agreement provisions relating to their wages are contained. Similar questions have arisen under previous collective agreements, and have been dealt with by other panels of the Board. The question first arose as a result of the reclassification of Mr. Szalonczay, one of the grievers, from Clerk 5 to Clerk 6. At the time of that reclassification, the Clerk 6 classification was not included in the bargaining unit. Subsequently, however, the classification - or more precisely the classification "Clerk 6 General (Bargaining Unit)", to which the grievers belong - was included in the bargaining unit. This was done retroactively, and *, ,-;&~ -3- questions arose as to the rate of pay for that new bargaining unit classification, and as to the entitle- ment of incumbents to the general increases provided for during the term of the collective agreement. _ Those questions, which involved the interpre- tation and application of the collective agreement provisions in effect in 1979, were decided in case no. 443/80 (Ssalonczay), by a panel of the Board.chaired by Mr. McLaren. In the "McLaren award" it was held that, the collective agreement having necessarily been silent on the matter, the correct rate of pay for a Clerk 6 General (Bargaining Unit) was to be determined by having regard to the rate then in effect for the non-bargaining unit classification of Clerk 6 General. It was also held that the grievor, whose reclassification, effected in 1980, was retroactive to March 1, 1979, and whose inclusion in the bargaining unit was retroactive to June, 1979, was entitled (retroactively) to the percen- tage pay increase provided for under the collective agreement for July 1, 1979. The grievance was filed in 1980, and the Board's decision was issued on June 23, 1981. By the time the McLaren award was issued, an intervening category agreement had come and gone. That agreement, in effect from January 1, 1980 to December *, “’ -4- 31, 1980, provided for two pay increases during its term, one of ten dollars per week and a later one of five per cent. The increases in each case were payable "to all classifications in this category based upon the salary rates in effect" on the day preceding the date of increase. While the 1980 agreement did provide for the classification of Clerk 6 General (Bargaining Unit), and did, for that as for other classifications, set out in an appendix (not referred to in the agreement itself), the "old rate" as well as the rates payable on the dates of the increases, the fact was that the rate for this particular classification was the subject of grievance proceedings at the time. Thus the "old rate" determined to be payable in Mr. Sixlonczay's case by the Mclaren award in respect of 1979 was not necessarily the rate so described by the parties in their 1980 agreement. The McLaren award concluded as follows: The grievor is, therefore, entitled to the 3%raise 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 Griever does not mean that the negotiated rates for 1980 for the classif- ication will change. The parties renegotiated their bargain and struck a new one with entitlement rates. This decision, therefore, does not have effect except to answer the particular griever's grievance. In further grievances filed with respect to -5- 1980 and 1981, however, Mr. Szalonczay claimed that payment in accordance with the salary grids set out in the appendices to the collective agreements in effect in those years was not correct, as those grids did not incorporate the results of the McLaren award. At the hearing held before a panel of the Board chaired by Mr. Prichard, counsel agreed that the comments set out above from the McLaren award with respect to 1980 were obiter dicta. In case no. 526/81 (the "Prichard award"), it was held that the salary-increase formula set out in the text of the 1980 agreement was to be applied, in the case of a Clerk 6 General (Bargaining Unit) - or at least in the particular case of Mr. Szalonczay, the one griever in that case - not to the "old rate" set out in the appendix, but rather to the 1979 year-end salary that the McLaren award determined to have been the griever's correct salary. The remainder of the 1980 formula, as well as the 1981 formula were also to be applied "on this corrected basis". The "corrected basis" for the salaries of Clerks 6 General (Bargaining Unit) does not appear to have been reflected in the collective agreement under which the present grievances have been brought. What is described in Appendix A to the current category agreement (that is, the agreement dated March 22, 1982 - the Prichard award was issued on August 4. 1982 - and -6- said to be effective from January 1, 1982 to December 31, 1983), as the "old rate" for the classification in question is simply the ~result of the application of the increase formula in the preceding agreement to the "old rate" there set out: it does not appear that account had been taken of the rate held by the McLaren award to have been correct. The question put to the Board in the instant case is, therefore, virtually the same in form as that put to the Prichard board. There are, however, differences in the operative language of the category agreements. The significance of those differences must be considered. In the 1980 agreement, the material provisions were as follows: 2. Salaries a) Effective January 1, 1980, an increase of ten (10) dollars per week to all classifications in this category based upon the salary rates in effect on December 31, 1979. b) Effective April 1, 1980, a further increase of five (5) percent to all classifications in this category based upon the salary rates in effect on March 31, 1980. In the light of these provisions, the conclusion of the Prichard award to the effect that "the i, ,t- -7- salary rates in effect" meant the salary rates properly in effect, and meant, in particular, the rate retroactively determined to be correct for the classification in question by the McLaren award seems to us, with respect, to be compelling. There was, as we have noted, an appendix to that agreement, setting out certain salary rates, but, at least with respect to the classification in question, the appendix was wrong. The Prichard award was, in our respectful view, quite correct in preferring the "formula" provisions to the appendix, in that case. In the 1981 agreement, the material provisions were as follows: 2. Salaries (a) Effective January 1, 1981, fan increase of nine percent (9%) to all classifications in this category, based on the salary rates in effect on December 31, 1980. (b) Effective May 1, 1981, a further increase of $12.35 per week to all classifications in the category. (c) Rates of pay for all classificat: ions, resulting from the application of the increases set out in (a) and (b) above, are attached as Appendix A. Again, in the Prichard award, the determination of what were properly considered "the salary rates in effect on December 31, 1979" led to the -8- conclusion that the rates subsequently in effect during the term of that agreement, which were deduced from the rates previously in effect by the application of the increase formula, were wrongly stated. Thus, the "rates in effect on December 31, 1980" were to be revised, and it followed that the statement of the "resulting rates", set out in Appendix A to that agreement was wrong in respect of the classification in question. It may be said that by the time the 1981 agreement was signed, the parties must be taken to have been aware of the issue raised by Mr. Szalonczay's grievance, although as we have noted the.McLaren award had not then been issued. The agreement now before the Board was signed on March 22, 1982. At that time the McLaren award had been issued, and the grievances to be heard by the Prichard board had been filed, although the matter had not yet been heard or determined by that panel. The material provisions of the 1982-83 agreement are as follows: 2. Salaries (a) Effective January 1, 1982, an increase of 9.5% to all classifications in the category ' based on the salary rates set out in Appendix A to the Clerical Services Category Agreement expiring on December 31, 1981 and in effect on that date. (b) Effective July 1, 1982, a further -9- increase of $9.25 per week to all classifications in the category. (c),Effective January 1, 1983, a further increase of 9% to all classifications in the category based on the salary rates set out in Appendix A to this Agreement and in effect on December 31, 1982. (d) Effective July 1, 1983, a further increase of $7.00 per week to all classifications in the category. (e) Rates of pay for all classifications, resulting from the application of the increases set out in (a) (b) (c) and (d) above, are attached as Appendix A. The agreement before us, in respect of the matter in issue, is clear and unambiguous. It is true that the parties have continued the cumbersome and potentially dangerous device of setting out an increase formula together with a resulting schedule of rates, rather than simply setting out in a straightforward manner what the grid of negotiated rates is.. Awkward as this format may be thought to be, in its present form it quite clearly permits a simple calculation based on numbers unambiguously referred to. Where the increase is an across-the-board dollar amount, no question is raised. Where it is a percentage increase, the amount on which the stated percentage is calculated is clearly identified. That amount is one set out in the appendix to the preceding agreement and (since the previous agreement provided various rates, effective at various times during its term), is the amount, in respect Of any i. ; - 10 - classification, in effect on the expiry date of the previous agreement. The rate payable in respect of any classification at any time during the term of the agreement before us may easily be determined from the face of the agreement and from the document thereon referred to. Under the previous agreements, extrinsic evidence was necessary in order to permit the determination of "the salary rates-in effect" at an earlier time. Under the agreement before us; no such evidence is necessary. Accordingly, ,it is our conclusion that the problem which arose under the previous agreements does not arise under that before us. We do not disagree with the previous awards: we deal, rather, with a different case, the parties having had resort to different Language in their agreement. mere is no Longer a proper question as to what the rates on which the increase formula isbased should have been; they are set out precisely in the document referred to. The agreement now provides explicit reference to such a document in the increase formula. Such a provision is new, and is separate from the "resulting rates" clause which had been in the 1981 agreement, and is continued in the agreement before us as article 2(e). We have had the benefit of reading Mr. - 11 - Craven's dissent but remain, with great respect, of the view that the phrase "in effect on that date" as it appears in article 2(a) of the agreement in issue serves, as we have indicated above, to ensure that the percentage increase called for by the agreement is applied to those rates set out in the Appendix as applicable at that time. Thus, while the McLaren and Prichard awards form part of the necessary background to an understanding of how the issue before us arose, the agreement which governs the instant case appears to be differently worded. In our view the differences in wording are significant, and on the agreement before us, a different conclusion results. There remains, however, a question as to the existence or substance of the agreement itself. Counsel for the union put forward, as an alternative argument, the position that the wording on which we have relied in the foregoing is not in fact the wording of the agreement negotiated between the parties, and that with respect to the inclusion of such language in the document in question, IIan equitable fraud has been perpetrated by the employer". At the hearing of this matter, the Board heard the arguments of counsel with respect to the interpretation of the agreement as we have set it out, - 12 - and we have dealt with that matter in the foregoing. As it advised counsel, the Board proceeded to hear those arguments without prejudice to the right of the parties to present evidence and argument on other relevant aspects of the grievances. The union is, accordingly, entitled to proceed on the alternative ground advanced, and the matter will be set down for continuation by the Registrar. Any such outstanding issues may be determined by a newly-constituted panel of the Board. DATED AT TORONTO, this 12th day of March, 1984. d .F.W. Weatherill Chairman "I dissent" (see attached) P. Craven Member .E..R. O'Kelly Member li [Interim Decision #23 DISSENT The majority’s award turns on the significance it attaches to differences among the versions of article 2 of the collective agreements that were before the McLaren and Pritchard panels of this board, and that are now before us. I cannot agree with the majority interpretation of the language in question. Earlier panels, of this board interpreted the language then before them and determined that the salary rate paid to, Mr Salonczay by the employer was incorrect notwithstanding that the rate he was paid was listed in the appropriate place in an appendix to the collective agreement. The burden of these decisions was that the rate “in effect” as of the signing of the collective agreement was the rate that Mr Salonczay ouaht to have been paid on the board’s interpretation, and not the rate he was actually being paid by the employer. It was undoubtedly open to the parties in making their 1982-83 collective agreement to have written express language establishing rates for the Clerk 6 General category and in doing so to have used words that would sever the connection between the previous rate and the new one. Such language would not be difficult to write. The language the 1 . . . parties agreed upon is not that language. In all the circumstances of this grievance the words, "based on the salary rates set out in Appendix A . . . U in articles 2(a) and 2(c) of the 1902-3 collective agreement do not sufficiently distinguish this agreement from those interpreted by the RcLaren and Pritchard panels. The question before this panel is essentially the same question as was before the Pritchard panel, and in my respectful submission it requires the same answer. There are two main strands in the reasoning which leads me to this conclusion. In the first place I analyze the language of the article and conclude that, far from being “clear and unambiguous" (as the majority has it), its interpretation is problematic precisely with respect to the matter in issue here. In ,the second place I turn to the context of the agreement, including the history of analogous provisions in the earlier agreements interpreted by other panels of this board, and I conclude that these factors amount to a presumption (akin to res iudicata) that the parties intended their language to mean what McLaren and Pritchard found their earlier similar language to mean. Drawing these two strands together, I find that the language of the article before us is insufficiently clear and precise to rebut that presumption. It is easily capable of bearing the presumptive interpretation, and so I would accord it that interpretation and uphold the grievance. 2 ARTICLE 2 The following discussion deals with the words of article 2(a) of the 1982-3 collective agreement. The same considerations apply by extension to the words of article Z(c) of that agreement. I consider the application of the agreement to the case of Mr Salonczay here: precisely the same considerations apply mutatis mutandis in the case of Mr Van Pelt and in other like cases. .For convenience, I reproduce the article here: 2. Salaries (al Effective January 1, 1982, an increase of 9.5% to all clansifi- cations in the category based on the salary rates set out in Appen- dix A to the Clerical Services Category Agreement expiring on De- cember 31, 1981 and in effect on that date. This article provides~ for a 9.5 per cent increase to all clerical services classifications. The issue before us may be stated in these terms: “To what salary rate shall the percentage increase be applied in Mr Salonczay's case?" The majority has focussed its attention on the words, "set out in Appendix A to the Clerical Services Category Agreement expiring on December 31, 1981." These words do not appear in the earlier agreements, and taken by themselves and without additional complication, they would bear the interpretation plated upon them by the majority. But they do not appear alone, and it is necessary to consider the bearing of the additional words, “and in effect on that date." It is necessary to consider what words in the article the subordinate clause, “and in effect on that date,” could modify- There appear to be three possible candidates. The clause could refer to “salary rates,” to “Appendix A,” or to “Clerical Services Category Agreement.” If the clause refers to “Clerical Services Category Agreement” it is entirely redundant because its meaning is -fully communicated in the words, “expiring on December 31, 1981.” This possibility is syntactically sound but has nothing else to recommend it. Neither party urged it in argument. It is implausible that the clause refers to “Appendix A, ” both because it is doubtful whether the Appendix per se could be said to have been “in effect, ” and because such an interpretation would lead to the same redundancy as above. The preferable candidate, for reasons both of grammar and of sense, is “salary rates.” ‘On a straightforward reading, the clause provides that the increase is to be based upon. rates which are (a) listed in the Appendix to the previous agreement and (b) in effect on December 31, 1981. (The formulation, “salary rates in effect” on a stated date, is the one employed by these parties in their previous agreements and interpreted by the McLaren and Pritchard panels of this board.1 The parties may or may not have contemplated that the rates in (a) and in (b) would be the identical rates. ,In either event, by providing both 4 qualifications they supplied this board with the jurisdiction to determine alleged differences between the two. There are a number of ways in which such differences might arise. There might be typographical or calculation errors in Appendix A. Most significantly for our purposes, and discussed further below, the parties were already engaged in litigation over an alleged difference between published and effective rates in Mr Salonczay's earlier grievances. Here, as there, the griever alleges that the rate “in effect” on the date in question was not the same as the rate published in the Appendix. He now bases his contention, of course, on an earlier award of this board. The majority seems to agree that the words, “in effect on that date,” modify "salary rates," insofar as they say, at pages 8 and following, “That amount is one set out in the appendix to the preceding agreement and (since the previous agreement provided various rates, effective at various times during its term), is the amount, in respect of any classification, in effect on the expiry date of the previous agreement. ” But their interpretation is open to two .objections on the language of the article alone. First, it makes the words "in effect on that date” redundant, for the provision would clearly mean what the majority would have it mean absent those words. Second, it is a more convoluted and less natural construction of the sentence in question than the one I have proposed. It is open, of course, to another objection as well: that it fai 1s to take proper 5 c % account of the context of the clause. I turn to the latter objection in a moment. I would find, then, that the inclusion of the words, "in effect on that date, ” in article 2(a) gives this board jurisdiction to determine alleged differences between the salary rates published in FIppendix A and those said to have been in effect on December 31, 1981. I respectfully suggest that the majority is wrong in finding that "the amount on which the stated percentage is calculated is clearly identified" as the amount that is "ret out in the appendix to t.he preceding agreement." Whatever might have been the case had the parties not included the words, "in effect on that date,” the inclusion of those words requires that the board turn its mind to the question what rates were in effect on December 31, 1981. An earlier panel of this board made a determination whose clear consequence is that the rates in effect on December 31, 1981, were not. the rates set out in Appendix A to the operative agreement. That determination was upheld on judicial review. The parties had an opportunity to dissociate themselves prospectively from the consequences of that determination when they negotiated the language of the 1982-3 collective agreement. They did not avail themselves of that opportunity. Clrticle 2(a) of the 1982-3 agreement included the words “in effect on that date,” referencing the salary rates under the expiring agreement upon which salary increases were to be based, and thereby kept the issue alive. b THE CONTEXT OF THE AGREEMENT Even if under other circumstances than those obtaining here the language of article 2(a) might be found to provide that the salary increases were to be based on the rates published in the expiring agreement’s appendix, regardless of what rates were actually being paid. or ought (on an interpretation of the expiring agreement) to have been paid, there are’factors in the circumstances of the grievance before us that weigh heavily against such an interpretation. In particular the earlier litigation on the same issue and involving the same griever, and the timing of the signing of the collective agreement before us in the history of that litigation, give rise to a reasonable presumption that the parties, knowing what issue was raised by the language of their earlier agreements, intended the 1982-3 agreement to carry the same meaning as those earlier agreements absent a clear indication to the contrary. As I have argued, while it was open to them to negotiate unambiguous language to the contrary in their 1982-3 agreement, the parties chose to maintain their reference to “salary rate5 in effect” on a particular date (alongside, in this case, specific reference to an Appendix). Whatever might be said of ,article 2(a) in a vacuum, its meaning must be placed in the context of the collective bargaining relationship of these parties. This is all the more the case where, aa here, the matters in question have been the subject of binding arbitration, and,, a fortiori, where the arbitrators' determinations have been sustained by the courts. In such circumstances, while the change of wording in the article may rule out the strictest application of the doctrine of res iudicata, there remains at any rate a strong pre’sumption that the retention of the particular form of words (in this case, "salary rates in effect” on a particular date) implies that the same meaning is to be attached to them in their new context as in the old. There is nothing in the evidence before us to rebut this presumption. The parties chose to use the words in the 1982-3 agreement. Had they intended to restrict the basis of the salary increase to the rates published in the appendix they should have said so plainly. There is in any event nothing in evidence to suggest that this was their intention. The parties signed their 1980 collective agreement in April of that year, and tlr Szalonczay filed the first of his grievances the following month. When the 1981 collective agreement was signed, in April 1981, the parties were unaware of the final determination of the matter since the McLaren panel only issued its award in June 1981. Mr Szalonczay filed his second grievance in August 1981. Its was heard by the Pritchard panel in June of 1982, and the award issued in August of that year. The parties signed their 1982-3 collective agreement on March 22, 1982. At the time they made the agreement before us, then, the parties knew, or ought to have known, how the McLaren panel had determined the issue with respect to the 1979 collective agreement. They knew, or ought to have known, that the issue remained in contention with respect to the 1980 and 1981 agreements, since the second Szalonczay grievance was in process at the time. ‘When they negotiated the 1982-3 agreement, the issue was within the knowledge of the parties and it was within their competence to clearly write it out of the collective agreement. This they did not do. That they did not do so must guide this board in its interpretation of the grievance before us. There is an alternative approach. Thus far, I have been discussing the context in “real time" terms, but it might also be examined in terms of the artificial assumption imposed by collective bargaining, that events occurred or language came into effect .at a “deemed” time determined retroactively. Thus the Pritchard panel found t,hat the 1980 and 1981 collective agreements “perpetuated” an error originating in 1979, although the error in question “was only confirmed in June 1981," with the release of the McLaren award. On the same logic, and consistently with the earlier awards, I would find that the Appendix referred to in article 2(a) of the 1982-3 agreement, is not the appendix to the 1981 agreement as published with that agreement, but that appendix as corrected retroactively by the Pritchard award, which only appeared in August 1982, some months after the 1982-3 agreement was signed. 9 CONCLUSIONS I would find, then, that the collective agreement on its plainwords gives rise to a potential conflict between the rates published in the appendix and those in effect on the relevant date. Such'conflict gives rise to essentially the same issue as was before the Pritchard panel of this board, and I find nothing in the collective agreement before us or in the evidence or submissions of the party to persuade me that the result here should differ from that determined by the Pritchard panel and upheld by the court. In the alternative, I would find that the collective bargaining context out of which this grievance emerges gives rise to a presumption in favour of interpreting the collective agreement so as to uphold the grievance, and that the presumption is not rebutted in the circumstances of the particular grievance. In the further alternative, I would find that the "Appendix" referred to in article 2(a) is not.the appendix published with the prior agreement, but is that appendix as retroactively corrected by the Pritchard award. In the result I would uphold Mr Szalonczay's grievance. Since the questions of interpretation addressed here do not require that any distinction be drawn between Mr Szalonczay's grievance and that of Mr Van Pelt, I would uphold the latter as well. I would invite submissions from counsel on the question of remedy, with due attention to the ‘\ \ ‘\ previous inte>i!,m decisions of this panel in these grievances. \ Respectfully submitted this 27th day of \ February, 1984 ,\ Professor Paul Craven, Member \ II 1; “1, \ -. ‘\ \ ‘\ \