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Home My WebLink About1984-1534.Ventura et al.88-12-05EMPLOV~S DELA CO”RONNE GEL’ON%4RIO COMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS ,80 DUNDAS STREET WEST TOKINTQ ONTARIO. M5G II&SWTE2100 TELEPHONEITtLhN34E 180, RUE DUNDAS 0”E.V TORONTO. ,Oh’oNTARIO, MSG 128 -BUREAU 2100 141~15984688 Q 1534/84 1 -. 1544/84 535/84 1545/84 1536/84 1537/84 1546/84 1547/84 1538/84 1539/84 1548/84 1549/84 1540/84 1550/84 1541/84 1551/84 1542/84 1552/84 1553/84 1554/84 1555/84 1556/84 1557/84 1558/84 1559/84 1560/84 1561/84 1562/84 1563/84 1564/84 1565/84 1566/84 1567/84 1568/84 1569/84 1570/84 1245/85 .1452/86 x1939/86.1941/86 .1942/86~0365/87.1931/87.~1992/87 .1993/87x2346/87 0167/88 0716/88 0790/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT- Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Ventura et al) Grievors Before: and The Crown in Right of Ontario (Ministry of Labour) Employer R.J. Roberts Vice-Chairperson J. Solberg Member G. Milley Member For the Grievors: J. Miko Grievance Officer Ontario Public Service Employees Union For the Employer: D. Brown Counsel Crown Law Office Civil Ministry of the Attorney General i. - Hearing: November 7, 1988 At the outset of the hearing both parties agreed to amalgamate four more cases with the current cases before this panel. These cases are: #1931/87. A. Koushik: #1992/87, R. Ioi: #1993/87, L. Phillips: and #2346/87, I. Balter. Thereafter, the parties made submissions as to the i’ssues which were left to be determined by this Board. Counsel for the Ministry essentially claimed that there were three issues left to be determined. These were: (1) whether the grievors were ever improperly classified: 12) if so, the amount of retroactivity to which they are entitled: (3) what interest, if-any, is payable to the grievors. Counsel for the Union agreed that the last two of these issues were before this Board but indicated surprise that the Ministry considered the first issue to be outstanding. Issue having thus been joined. the Board then heard evidence and argument upon the matter and for reasons which follow we conclude that only the issues of retroactivity and interest are before us. \ ,‘. Ii : ,‘a ,I : i ‘\ Most of the grievances in this case rw2re filed in 1984. Hearings before the Grievance Settlement Board began in March 1986. Several days of hearing were scheduled: however, there were many adjournments because it appeared that there was a substantial likelihood of a negotiated settlement. Briefly, the grievances were filed by all of the Human Rights Officers in the province of Ontario. They claimed that they were improperly classified because of an increase in their level of responsibility, complexity of their work, etc. The Board was made aware that at the same time as the hearings were scheduled to take place, the Ministry was nearing completion of a revision of the class standards for the Human Rights Officers and that once these were issued, the Union would. under the Collective Agreement, have a right to negotiate with management the wage rates to be assigned. This process, it seemed, could moot the issues raised in the grievances. On May 11, 1987, pursuant to agreement between the parties. the Board issued the following order: The Board hereby declares that new classifications or class standards are being created or existing classifications or class standards are being revised ‘ pursuant to then Article 5.8, now Article 5.9 of the collective agreement. The now Article-5.9. parties' rights under then Article 5.8. are now in force. It Was agreed between the parties that the hearing scheduled for June 11 and 18, will not be adjourned and that this Board has jurisdiction to deal with: I- ! ! I _. 3 1. The appropriateness of the 'new or revised classifications or class standards: 2. Retroactivity of the classifications or c standards, including retroactivity of salary benefits: 3. Appropriate salary and benefit ranges for the or revised classifications or class standards: 4. Interest, if any, that may be payable. DATED at Toronto, Ontario this 11th day of May, 1957. R. J. Roberts, Vice-Chairman as5 and new R. Russell, Member H. Roberts, Member Subsequently, on August 4, 1988, the parties entered the following Memorandum of Settlement: into Without precedent,' and with regard to the Order of the Board dated at Toronto, Ontario, on 11th day of May. 1987, and issued by a panel chaired by R. J. Roberts, Vice-Chairman, Grievance Settlement Board, in the matter of an arbitration between OPSEU (Ventura et al) and the Crown in the Right of Ontario (Ministry of Labour) GSB files 1534/84 to 1570/84 inclusive, and 1245/85, the parties hereto agree to amend the aforesaid Order as follows: 1. In view of the fact that the parties have agreed upon. the appropriateness of new or revised classifications or class standards, but have been unable to reach agreement on the salary rates, an interest arbitration shall be established to convene hearings at expeditiously as possible before September 1, 1988 pursuant to Article 5.8 of the Collective Agreement and Sections 11 and 12 of the Crown Employees Collective Bargaining Act. 2. The Chair LRT, will be asked to appoint the Nominees of the Parties to the interest board of arbitration and will appoint Mr. R. J. Roberts as 4 chairman. It is agreed that this Board has jurisdiction to determine the salary rates for the new classification of H.R.O. 1 and 2, as of August 26, 1987. 3. It is agreed that the panel 0f.G.S.B. chaired by Mr. R. J. Robfrts shall remain seized of the issues of retroactivity on salary rates flowing from the claims of improper classification-and interest on the salaries to be paid to H.R.O.'s and shall hold hearings as soon as possible but no iater than September 30, 1988. At the hearing, it was indicated that the purpose of this agreement was to permit an interest arbitration board of the Labour Relations Tribunal to determine the salary rates for the new or revised classifications of Human Rights Officers 1 and 2. Pursuant to paragraph 3 of the agreement, then, the Grievance Settlement Board would only "remain seized of the issues' of retroactivity on salary rates flowing from the claims of improper classification and interest on the salaries to be paid to [Human Rights Officers1 ." It was the submission of the Ministry that the above-quoted language required the Board to determine whether the grievors ever were improperly classified before it would have jurisdiction to address the issues of retroactivity and interest. Mr. W. Gorchinsky, the negotiator for the Employer, testified that this was the intent of the parties in stating that the Board remained saized of jurisdiction to determine the retroactivity of salary rates "flowing from the claims of improper classification." It was suggested that this language meant that before awarding any , 5 retroactivity the Board was first .required to find that tha Human Rights Officers were improperly classified. In this regard. reference was made to the fact that by virtue of the proceedings to date, the Human Rights Officers had received. in the opinion the Employer, a revised classification and there was some question whether the recipient of a revised classification could be deemed to ever have been improperly classified. We found this to be a very technical interpretation of what, we agreed, was language with a degree of ambiguity and so we inquired whether this understanding of the language ever had been conveyed to the negotiators for the Union. Mr. Gorchinsky stated that, to the best of his recollection, he made such representations to the negotiators for the Union and certainly did so to Mr. H. Waisglass, the Mediator who ultimately drew up the Memorandum of Settlement. Mr. Waisglass was unavailable to testify: however, Mr. A. Bekerman, the Negotiator for the Union, testified that he did not recall Mr. Gorchinsky saying anything at all to him about this technical interpretation of the language of paragraph 3. He added that if anything like that had been said he would have withdrawn the Union group from the process. In his view, he stated, paragraph 3 was solely intended to refer to the Grievance Settlement Board the questions of how much retroactivity would be given to the new wage rate established by the Interest Arbitration Board and how much interest, if any, ought to be awarded. In our view, this difference in perception squarely raised the question of what the parties intended. at least from a legal point of view, when they agreed to the language of paragraph 3 of the Memorandum of Settlement. The proper method of determining this intention is to consider their representations to each other in light of the surrounding circumstances. In light of the conflict in the evidence, while we are satisfied that Mr. Gorchinsky subjectively understood paragraph 3 to preserve the issue of whether the grievors ever had been improperly classified, we are not satisfied that this intent was communicated to the Union in such a manner as to make it the objective intent of the parties. This brings us to consider the wording of paragraph 3 in iight of the surrounding circumstances. It has not escaped our attention that this was a paragraph of a settlement agreement which was reached after protracted proceedings extending from 1984. Given this, we would not ordinarily expect that at such a late stage in the proceedings, wherein there already had been agreement upon a revised or new classification and reference to an Interest Arbitration Board, that the parties would have then agreed to go back to the Grievance Settlement Board and litigate whether the grievors had been shown to have been improperly classified. The more normal and usual reading of paragraph 3 in these circumstances would be that the parties agreed to submit 7 the issues of retroactivity and interest to the Grievance Settlement Board and litigate only thos2. We mentioned before that we found the interpretation suggested by Mr. Gorchinsky to be a highly technical one,, and it would take clear and convincing evidence to induce us to hold that this was the interpretation which the parties intended to place upon the words which were used. That not having been shown, we rule that we solely have jurisdiction to determine retroactivity and interest, and those are the only outstanding issues before this Board. DATED at London, Ontario, this 5th day of .December, 1980. / ~J./E&b&s. Vice-Chairperson "1 dissent" (Dissent attached) G. Milley, Member DISSENT -- I have read the Vice-Chairman's decision in the above case and for the reasons which follow, I regret I am unable to concur in his conclusion. This member did not participate in the earlier proceedings which culminated in the hearing of November 7,1988. For this reason, the historical background of the case provided by the Vice-Chairman was most helpful. I will have something more to say about the decision later. However, it appears to me that the assumptions made and the reasons given do not support the conclusion reached. Notwithstanding the difference of opinion between the parties on the interpretation of paragraph 3 of the Agreement of August 4,1988, I do not find the paragraph to be ambiguous. The issue to be determined is the meaning of the words; "shall remain seized of the issues of retroactivity on salary rates flowing from the claims of improper classification and interest on the salaries to be paid to H.R.O.'s" The la.nguage is that the issues of retroactivity on salary rates and interest on'the salaries must flow from the claims of improper classification. They cannot flow from anythinq else. The.claims of improper classification are the grievances filed in 1984. Thus, in order for the Union to succeed it must show that the retroactivity on salary rates and interest on salaries flow from 2 the 1984 grievances. However, it may well on salary rates and interest on the salar flow from something else. be that retroactivity ies, if such there be, Turning to the Vice-Chairman's historical review, he says: "Briefly, the grievances were filed by all of the Human Rights officers in the province of Ontario. They claimed that they were improperly classified because of an incr- ease in their level of responsibility, complexity of their work, etc. The Board was m?dn aidarc +.)-.a+. :I: I:hr same timeas the hearings were scheduled to take place, the Ministry was nearing completion of a revision of the class standards for the Human Rights Officers and that illlce these were issued, the Union would, under the Collective agreement, have a right to negotiate with management the wage rates to be assigned. This process,it se- emed, could moot the issues raised in the grievances." There is no indication here whether the reason for the revision to the Class Standards was a normal"State Of The Art" updating by the Ministry or whether it came about as a result of the Grievances. No evidence was heard on this question. Therefore, it cannot be concluded that the issues of retroactivity on salary rates and interest on the salaries flowed from the claims of improper classification. There is no doubt the Board is bound by the Agreement of August 4,1988. For the Board to remain seized it must be demonstrated that the issues of retroactivity on salary rates Zhd .inZere=k on the salaries to be pai~d to H.R.O.'s~flow from the claims of improper classification.Clearly, this has not been demonstrated. This member, therefore, must conclude that the board is not seized of the above issues. Comment is made in the award that paragraph 3 was reached after protracted proceedings extending from 1984 and we would not expect the parties to agree to further litigation in the circum- stances. I agree it would be unfortunate if further litigation is required at this stage. However, as I stated earlier, I do _ -- . not find paragraaph 3 ambiguous. I,t may sound ,trite, but it is also a truism;the discretion of the Board is limited to interpreting the language of the agreement. It is not its function to seek to dispense justice and equity. . Respectfully submitted, Member 3