FPSLREB Decisions

Grievances referred to adjudication

[1]   Frank Nitschmann and 11 other Heating Plant Operators in the Heating, Power and Stationary Plant Operations (HP) classification (see attached list) filed grievances against a change in work schedule implemented in October 2002 by the Utilities Management Service (UMS) of Public Works and Government Services Canada (PWGSC).  All of the grievors work at heating and cooling plants in the National Capital Region and are at the HP–3 or HP–5 level.  The grievors are represented by the Public Service Alliance of Canada (PSAC) and are subject to the Operational Services collective agreement between the PSAC and Treasury Board (Exhibit G–1; expiry date: August 4, 2003).

[2]   The grievances were filed on November 6, 2002.  The final level replies to the grievances were received on June 23, 2003, and the grievances were referred to adjudication on September 8, 2003.

[3]   Two witnesses testified on behalf of the grievors and one of the grievors, Frank Nitschmann, also testified.  Two witnesses testified on behalf of the employer.

[4]   On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force.  Pursuant to section 61 of the Public Service Modernization Act, I continue to be seized with these references to adjudication, which must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C., 1985, c. P–35 (the “former Act”).

Summary of the evidence

[5]   The grievances allege that the introduction of a five–week work schedule by the employer violated Articles 25 (“Hours of Work”); 27 (“Shift and Weekend Premiums”); 28 (“Variable Hours of Work”); 29 (“Overtime”); 30 (“Call–back Pay”); 31 (“Standby”); 32 (“Designated Paid Holidays”) and Appendix “D” (“Group Specific Provisions”).  In essence, they are grieving that the employer imposed a special arrangement of hours of work without obtaining the necessary majority support of affected employees, as provided for in Appendix “D” of the collective agreement.

[6]   Five of the grievors work at the Central Experimental Farm Plant; three of the grievors work at the Cliff Street Plant; three of the grievors work at the Booth Street Plant and one of the grievors works at the Confederation Heights Plant.

[7]   The heating and cooling plants provide heating and cooling services for most of the federal government buildings in the National Capital Region.  Most of these plants are in operation year–round, around the clock.  All of the plants that the grievors work at are on a 24–hour, seven days per week operation.

[8]   The job description for the HP–3 Shift Operator specifies a “rotating shift schedule” (Exhibit E–1), as does the job description for the HP–5 “Shift Supervisor” position (Exhibit E–4).  The job description for the HP–3 Shift Operator sets out two main duties: operating plant equipment (45%) and maintenance of plant equipment (30%).

[9]   Prior to 1978, the heating and cooling plants were operated on eight–hour shifts. For those plants on 24–hour operation, there were three eight–hour shifts.  In 1978, discussions started about the introduction of a 12–hour shift.  Hans–Georg Meyer was the bargaining agent local representative and chairman of the 12–hour shift committee.  He testified that signature sheets were circulated to all plants to determine the wishes of the employees.  The sheet for the Confederation Heights Plant (Exhibit G–5) outlined the purpose of the signatures as follows:

[…]

   The reason for obtaining their signatures is to find out whether they either agree, reject or declare themselves indifferent to the change from the present 5–Shift system of 8 hours each to a 5–Shift system of 12 hours each, with the exception of the maintenance week which is to stay at 8 hours per shift.  There are a number of plants in this area who have changed to various 12–hour shift systems and it has been proven to be successful.

   Should this pilot project materialize, it will be on a probationary period of six months.  If proven satisfactory to all parties involved, it should then become permanent.

   The type of 12–hour system suitable for our Confederation Heights plant would have to be decided upon at a meeting between the Chief Engineer and all shift–engineers and operators involved.  Such items as holiday coverage and pay, sick leave and annual leave have still to be clarified.

[…]

[10]   In 1978–79, there were a series of votes at a number of heating plants in the Ottawa area for the imposition of a change in the scheduling and hours of work from the five–week system of eight–hour shifts to a five–week system of 12–hour shifts, with the exception of the maintenance week, which was to stay at eight hours per shift (Exhibit G–5).  Vote documents for the plants at Confederation Heights, Tunney’s Pasture, Booth Street and Cliff Street were identified by Mr. Meyer (Exhibit G–5).  Also introduced was the vote result for the Carson Road Plant (Exhibit G–8).

[11]   A majority of employees supported the introduction of a 12–hour shift.  The 12–hour shift commenced at the Confederation Heights Plant on January 8, 1979 (Exhibit G–5).   Mr. Meyer testified that the length of the shift cycle was five weeks, with four weeks on rotating shifts and one week, Monday to Friday, 7:00 a.m. to 4:30 p.m.  The agreement recognized that the PSAC would not support any grievance due to work performed in excess of eight hours, “namely 12 hours per shift with the exception of the maintenance shift which will remain at 8 hours” (Exhibit G–5).  The signatures supporting the 12–hour shift at the Tunney’s Pasture Plant were obtained on February 16, 1979, and the shift was agreed to by management approximately two weeks later.  The 12–hour shift started on March 19, 1979 (Exhibit G–5).  The shift cycle at the Tunney’s Pasture Plant was initially a five–week cycle and to Mr. Meyer’s recollection, it always remained on that cycle.  In September of 1979, the employees at the Booth Street Plant agreed to a 12–hour shift and management also agreed.  The 12–hour shift commenced on or about November 10, 1979 (Exhibit G–5).  In January 1980, the employees at the Cliff Street Plant agreed to the introduction of the 12–hour shift (Exhibit G–5).

[12]   In 1979, a dispute arose with regard to the introduction of the 12–hour shift schedule at the Carson Road Plant.  At a special union–management consultation meeting held on October 31, 1979, the bargaining agent complained that management had implemented the 12–hour schedule at that plant unilaterally (Exhibit G–7).   Management responded that the implementation had been in error and apologized.  As a result, the employees were paid overtime for the four hours of work above their eight–hour shift; the Carson Road Plant reverted to an eight–hour shift and the Plant was put on the waiting list for the introduction of a 12–hour shift.  Subsequent to this, the employees at the Carson Road Plant agreed to the 12–hour shift in an undated signature sheet (Exhibit G–8).

[13]   On February 7, 1980, the Head of UMS, F. Vaculik, sent a memorandum to all plant superintendents at Confederation Heights, Tunney’s Pasture, Place du Portage, Booth Street, Cliff Street and Fallowfield Road, entitled “12 Hour Shift Program” (Exhibit G–9).  In the memorandum, he indicated that the basic schedule was a five–week cycle with local modifications at Place du Portage and Cliff Street: “Any changes to the basic schedules has to be approved by the 12 hour shift committee…”  

[14]   Mr. Nitschmann testified that when he was previously assigned to the Rideau Hall Plant from 1981 to 1983, the plant was on an eight–hour rotational schedule.  As he had just come from a 12–hour, 12–week cycle plant, he spoke with his colleagues about changing the schedule at the Rideau Hall Plant.  He then called in the Shop Steward in order to have a vote amongst the employees at the Rideau Hall Plant.  The employees supported a change to the 12–hour shift, and the Plant Chief accepted the outcome and agreed to try out the 12–hour shift, 12–week schedule, for one year.  Mr. Nitschmann testified that he transferred to another plant before the end of the review period.

[15]   Prior to November 2002, the majority of shift schedules were 12–hour, 12–week schedules.  The Tunney’s Pasture and CFIA plants were on a five–week schedule.  All of the plants where the grievors work were on a 12–week schedule.

[16]   At those plants where a 12–week schedule was in place, there were two types of shifts; the 12–hour shift was known as the operating shift.  All the grievors, except for one, worked these 12–hour shifts exclusively.  Rick Laalo, who was president of the PSAC local in 2002, testified that the operating shift involved starting and stopping equipment and monitoring plant operations.  The other type of shift was the maintenance relief shift.  These shifts were eight–hour shifts, during the day, Monday to Friday.  Maintenance duties involved rebuilding and repairing equipment or systems.  If someone was not available for the operating shift, a maintenance relief employee would fill in.  Mr. Laalo testified that employees had traditionally been divided between the two types of work and generally did not move between the two.

[17]   Mr. Laalo was the president of the PSAC local in 2002 and has held a variety of union executive positions since 1984 (Exhibit G–10).  He testified that he was aware of two other instances of changes to a plant’s schedule after 1981.  In 1999 or 2000, the employees at the CFIA Plant agreed with the Plant Chief to a 12–week schedule with a three–month rotation through maintenance.  The maintenance shift was an eight–hour day shift.  After going through a complete cycle of 15 months, the employees felt it was unworkable in terms of family and home responsibilities.  The employees made a request through the union local to change the schedule to a five–week schedule.  Management accepted the vote in the plant and allowed the five–week schedule to proceed.  Mr. Laalo also testified that the Confederation Heights Plant moved from a 12–week schedule to a five–week schedule and then back to a 12–week schedule.  He could not remember when this occurred.  In cross–examination, Mr. Laalo testified that the normal practice for a schedule change was that the employees would approach the Plant Chief with a proposed schedule.  If the Plant Chief had no reservations and did not call the bargaining agent to verify, it would not get involved.  If the Plant Chief had reservations or there was resistance, then the local executive would be called and would organize a vote.

[18]    Frank Nitschmann testified that it was the Plant Chief who approved all annual leave and overtime.  It was the Plant Chief or Assistant Plant Chief who determined the schedule of shifts.  The Plant Chief was also the first level for grievances.

[19]   Ralph Greenough is the A/Operations Coordinator and has been in the position for four years.  He has worked as a shift operator, shift supervisor, plant superintendent and acting utilities manager.  In his position as A/Operations Coordinator, he is responsible for the operation of plants and staffing and human resources for the operational staff.  He testified that an operational review started in 1999 to look at how UMS was conducting business, look at improvements and efficiencies.  Management was considering changes to scheduling.  Mr. Greenough testified that the employees were reluctant to accept assignments in other plants because of the difference in schedules.  It was difficult to find employees for temporary assignments unless they were guaranteed a particular position at one plant.  He testified that management realized that it had to start standardizing schedules and make everything equal across the board.  He also testified that management was not able to ensure that all employees had the experience and the skills to fulfill every one of their duties.  Management wanted to eliminate real or perceived advantages or disadvantages of working in any one plant.  The maintenance shift depended on volunteers.  This came to a head at CFIA where management ran out of volunteers.  Management also wanted all employees to work both the operations and maintenance shifts in order to end the “we and them” of maintenance and operations.

[20]   Discussions leading up to the change to a standardized five–week schedule began sometime in 2000.  At the union–management consultation meeting of November 23, 2000 (Exhibit E–6), the “operational review” was discussed.  Mr. Nitschmann attended the meeting and is recorded in the minutes as saying that any shift changes would have to be voted on by the employees.  On June 21, 2001, “operational review” was again discussed (Exhibit E–3).  There is a reference in the minutes to a discussion by management of a rotational schedule for HPs that would provide that they would work both in maintenance and in operations.  It was noted in the minutes that management felt that this would “help with the flexibility problem we are currently experiencing.”

[21]   Mr. Laalo sent a memorandum and attached sheet for employees’ signatures, dated February 18, 2002 (Exhibit G–11).  In his covering memorandum, he stated that management was going to require all plants to work the same shift – the five–week schedule.  He also stated that management wanted to eliminate the “alignment of position numbers with particular plants” and to create the concept of a single worksite for all of UMS.  He also stated that the effect of such changes would be to create a large pool of engineers and would eliminate the opportunity for members in each plant to have a direct say in the plant’s schedule.  Signatures were obtained from the Cliff Street, Booth Street, CFIA, RCMP and Confederation Heights plants.  All those who signed indicated that they did not support the proposed five–week schedule.  

[22]   Wendall Wilson, Manager of UMS, testified that management had been considering the establishment of a “matrix” organization that would eliminate the assignment of employees to particular position numbers.  He testified that UMS management did not want a pool of HP employees.  He defined a “pool” as a group of employees who showed up at a location and were dispatched to work at different locations.

[23]   At the union–management consultation meeting of March 20, 2002, the minutes indicate that management stated that it wanted to set up a separate meeting to discuss a document prepared by the bargaining agent on proposed changes to the shift schedules and other work–related issues (Exhibit E–9).  In this document, it indicates that the local advised management that the proposed introduction of the five–week schedule violated the contract and would require a majority vote of employees.  Management’s response, contained in the addendum, was that the implementation of a standardized schedule for all plants was not contrary to the collective agreement.  Management also stated that the intent was:

[…]

…to ensure equality, training and development of all staff and to ensure plant management is consistent and effective. Rotation from shift [operations] to maintenance was identified as essential for current operations and to meet the above objectives...

[…].   

[24]   The local also stated that it was opposed to the “one work site” concept (Exhibit E–9).  Management’s response was that currently the “work site” was identified as the UMS group for all official staffing actions, not a single plant as an independent entity.  Mr. Greenough testified that UMS management was looking to standardize schedules across all plants, with no exception for individual plants.  

[25]   On October 3, 2002, Mr. Wilson issued a memorandum to all staff of UMS advising that all continuous operation (“24/7”) plants were required to implement a five–week rotational schedule as of October 28, 2002 (Exhibit G–2).  He outlined the intent as follows:

[…]

   The intent of this schedule shall be to assist in ensuring equity for all HP operating staff, in performing maintenance and operational duties as established in all work descriptions and to meet current operational requirements.  A standardized schedule for all plants and operational staff ensures equality for the benefits and detractions of the shift/maintenance allocation of any configuration of a 24/7 schedule.  Therefore, it is imperative that all staff be identified for inclusion in the revised plan and schedule.  This is not a change in working hours; it is a variation of the 24/7 schedule, hours of work remain 12 or 8 hour [sic] as per current and proposed configuration.

   This initiative is based upon current group and operational requirements as part of Utilities Management Services management initiatives towards standardized plant management.  Consultation and discussions on this initiative has [sic] been extensive at several tables including the local union executive.  It was determined that the 5 week schedule was the preferred option for trial implementation over the current 12 week schedule and will be given first opportunity for assessment as the standard operating schedule …

[…]  

[26]   Mr. Wilson testified that a five–week schedule allowed management to conveniently schedule everyone through four days of eight–hour maintenance work within the five weeks.  In this memorandum (Exhibit G–2), Mr. Wilson also stated that the schedule would be implemented on a trial basis and that a review of the schedule for cost and operational effectiveness would be completed after six months.

[27]   At a union–management meeting on October 9, 2002, Mr. Laalo advised that a vote on the five–week schedule would be taken in the heating plants (Exhibit G–3).  The minutes of the meeting (Exhibit G–3) state that Mr. Wilson said that the schedule would be implemented in November, “regardless of the outcome of the vote.”  Mr. Laalo testified that a formal vote was not undertaken at the affected plants.  He did testify that he believed that there were some “straw polls” at a number of plants that indicated that the majority did not support the change.

[28]   Mr. Wilson testified that he recalled that Mr. Laalo had asked that management not proceed with the rotation of all HPs.  Mr. Wilson stated that he did set up a meeting to discuss this with Mr. Laalo and that he advised him that he would consider Mr. Laalo’s request; however, Mr. Laalo did not respond to his offer of further consultation.  Mr. Wilson testified that an agreement based on this suggestion would have been possible.  

[29]   The new five–week schedule was set out for the employees on or about October 11, 2002 (Exhibit G–4), to be implemented as of October 28, 2002.   

[30]   At a union–management consultation meeting held on February 13, 2003, the bargaining agent representative identified the difficulty that employees were having in ascertaining whether they would be working on Christmas, Easter and other holidays (Exhibit E–11).  At the consultation meeting held on April 24, 2003, Mr. Wilson indicated that he had tasked a plant superintendent with putting together a long–range schedule as an example for other plant superintendents (Exhibit E–12).

[31]   Mr. Nitschmann testified that the five–week schedule was hard on the body because of the switch from days to nights during the life of the cycle.  It becomes difficult to stay awake when one switches from days to nights.

Summary of the arguments

For the grievors

[32]   Ms. Bramwell submitted that the most critical collective agreement provision in this dispute was subclause 3.05(c) of the Group Specific provisions found in Appendix “D” of the Operational Services collective agreement:

3.05    Twelve (12)–Hour Shifts and Other Variable Hours of Work

[…]

3. Any special arrangement, including twelve (12)–hour shifts, may be at the request of either party and must be mutually agreed between the Employer and the majority of employees affected and shall apply to all employees at the work unit.

[33]    It was the grievors’ submission that this subclause was breached by the unilateral introduction of the 12–hour, five–week schedule by the employer.  There has been a long history of interpretation of this subclause by the parties (30 years) that shows that management, the union and employees had a clear understanding of this subclause.  The parties acted repeatedly on that understanding over the 30 years.  In the fall of 2002, management rejected that past practice and unilaterally adopted a different interpretation.  There was no evidence that the employer gave any notice of its new interpretation at the bargaining table.  Ms. Bramwell submitted that repeated threats were made by management during local consultations that it was about to adopt a new interpretation and the bargaining agent consistently indicated that it did not accept management’s interpretation.

[34]   Ms. Bramwell submitted that “special arrangements”, as set out in the collective agreement, require many steps.  First of all, it can be at the request of either party; secondly, the special arrangement must be mutually agreed to.  Once it is agreed to, the special arrangement then applies to all the employees at the work unit.  Ms. Bramwell then submitted that to define what a “special arrangement” was, it was worthwhile to first look at what it was not.  There are two classes of workers under the standard (or non–special arrangement) hours of work.  Clause 3.03 of Appendix “D” sets out fixed hours of eight hours per day, five days per week, while clause 3.04 sets out rotating or irregular hours, based on operational requirements.  There is no dispute that operational requirements require around–the–clock coverage at most plants.  The rotating or irregular hours are eight–hour shifts, as specified in clause 3.04.  The eight–hour shift was what was worked prior to the introduction of the special arrangement of 12–hour shifts.  Twelve–hour shifts were adopted plant by plant through votes that showed that a majority of affected employees at each worksite wanted a 12–hour schedule.

[35]   Ms. Bramwell submitted that it was management’s right at any time it wished to return to the eight–hour shift schedules.  It is clear that special arrangements must be mutually agreed to.  The minute that that agreement is gone, the special arrangement is gone, too.  Ms. Bramwell submitted that the language of the collective agreement could not be clearer.  The 30 years of interpretation of this language creates an estoppel so powerful that Ms. Bramwell did not see how it could be overcome.  She submitted, however, that the case does not turn on estoppel; rather, it is a straight contract language case.

[36]   Ms. Bramwell noted that the testimony of Messrs. Greenough and Meyer was consistent – that what is not “special” falls under clause 3.04.  Within the parameters of clause 3.04, there is a certain amount of flexibility in terms of such things as starting and finishing times.  Twelve–hour shifts are not one of those options that can be considered a management right under the collective agreement.  Twelve–hour shifts must be mutually agreed to.  The language in the Group Specific provisions is mirrored in the Master Agreement in Articles 25 and 28.  Clause 28.05 gives the employer a fair bit of power and in order for the employer to get such latitude, mutual agreement must come first.

[37]   Ms. Bramwell submitted that an “arrangement” is simply the order in which things are put.  Each new arrangement requires new consent.  When you add an extra thing to the mix, you are creating a new arrangement.  A shift schedule with only 12–hour shifts is different from one with 12 and eight–hour shifts.  Certainly, this was how it was treated in the past, where votes were taken when there was a change to 12–hour, 12–week schedules and 12–hour, five–week schedules.  Ms. Bramwell referred me to the original signature sheets (Exhibit G–5) and Mr. Laalo’s testimony about the Confederation Heights Plant.  The language in clause 3.05 does not say that once employees have accepted one special arrangement, a new one can be imposed by the employer.  Under the collective agreement, there is the potential for enormous flexibility and creativity, but it must be mutually agreed to.

[38]   Shift workers are vulnerable people, Ms. Bramwell stated.  The collective agreement provides them with some protection.  It is clear that management has certain objectives: an efficient operation, predictability and flexibility.  All of these are valid management objectives, but the achievement of these objectives comes in a way that has a great impact on the life of employees.  The collective agreement provides that management can achieve these objectives if the employees agree.  The articles are there for the protection of employees.  The issue in these grievances is whether the employer met one of the hurdles in subclause 3.05(c) – to achieve mutual agreement.  The evidence is clear that it did not do so.

[39]   Ms. Bramwell noted that Mr. Wilson testified that some agreement might have been possible based on Mr. Laalo’s suggestion of a five–week, no rotation, schedule.  However, this is grossly at odds with both Mr. Laalo’s testimony and the documents entered as exhibits, where it is clear that the rotation was a key part of management’s objective.  In the end, it does not matter what the reasons were for not achieving mutual agreement, because the section says that there must be a mutual agreement.  Mr. Laalo’s statement in Exhibit G–3 about the five–week schedule, no rotation, was simply an attempt to mitigate the consequences of the unilateral imposition of the five–week schedule.

[40]   Ms. Bramwell submitted that Mr. Laalo testified that the only time that a vote was not conducted was at the CFIA Plant when, she submitted, the length of the shift cycle was spread over such an extended period that it violated the collective agreement.  Mr. Laalo’s testimony on the votes was uncontradicted, and it would have been simple for the employer to call witnesses to contradict it.  Mr. Greenough was not equally clear in his testimony; he was remarkably vague.  It does not appear that he had considered the obligations under clause 3.05.  Although he spent a lot of time thinking about management’s goals and how best to achieve them, he spent almost no time considering management’s obligations under the collective agreement.  He was like a bull in a china shop, and what got broken were the articles of the collective agreement.

[41]   Ms. Bramwell argued that the interpretation of “work unit” related to the pooling issue raised in Exhibit G–11.  Mr. Greenough had no definition of “work unit” and variously testified that the “work unit” was the people affected or the whole of the UMS.  This testimony was highly disingenuous.  There is a nexus in clause 3.05 between “the majority of employees affected” and “apply to all at work unit”.  The vote is among those affected, who are clearly those at the plant working the schedule.  The employer’s interpretation would lead to the potential result that if three employees at a small plant decided they wanted a new schedule, this new schedule could apply to the whole of the UMS.  The number of employees “affected” runs plant by plant.  This has been the consistent interpretation and practice over 30 years.  A work unit is a plant; this is a logical interpretation and one based on a powerful estoppel of 30 years.  All leave is approved at the plant level and the approval of shift schedules occurs at the plant level.  In Exhibit E–10 (section entitled Operational Review), the bargaining agent’s position was that each plant is regarded as a single entity.

[42]   Ms. Bramwell argued, in the alternative, that if the employer’s definition of work unit is correct, it still did not determine whether there existed a plurality of support for the change.  The union attempted such a determination (Exhibit G–11) and received enough negative reaction to know that the proposal by management was against the wishes of a majority of the members.

[43]   Ms. Bramwell noted that management has put forward several excuses as to why it did not bother with applying clause 3.05 of Appendix “D”.  The biggest was operational requirements.  Mr. Greenough’s objectives (Exhibit E–5) were all good reasons why management needed everyone on the same schedule.  However, the collective agreement establishes constraints on the way that problems can be solved.  If management wanted everyone on the same schedule, it could revert to eight–hour shifts, or achieve mutual agreement.

[44]   Ms. Bramwell also noted that Mr. Greenough testified about the yo–yo effect of going between maintenance and a 12–hour shift, and he recognized how difficult it is.  Mr. Greenough recognized that the mix of 12–hour and eight–hour shifts is a very different arrangement from straight 12–hour shifts.

[45]   Ms. Bramwell submitted that the essential elements of estoppel were present here: a promise was made through past practice; the party has relied on that practice.  Mr. Meyer testified that the employees had traded their right to get overtime after eight hours in order to achieve these special arrangements.  Ms. Bramwell submitted that management could not achieve a rollback of rights by changing the shift schedule.

[46]   Ms. Bramwell noted that the employer also relies on subclause 4.02(a); this is not a valid interpretation.  This clause must be interpreted in a way that makes sense and that does not nullify a right in another article.  The term “schedule” does not refer to an “arrangement”.  Other articles talk about “schedule”.  For example, clause 28.05 talks about the maximum life of a schedule.  A schedule is something that you publish so an employee can figure out his or her own personal schedule.  Sometimes that schedule has to be changed because of sick leave or other factors.  Therefore, clause 4.02 is really all about when the schedule is being changed.

[47]   Ms. Bramwell submitted that the employer has also argued that the 12–hour, five–week schedule is simply a variance of the existing 12–hour, 12–week schedule and that it can impose any “flavour” of 12 hours that it chooses.  This reasoning is at odds with the intent of the article, logic and the testimony.  This change has a huge impact on employees and the employer has recognized this in its final level reply to the grievances.  The length was altered from 12 weeks to five weeks, but also there was the introduction of eight hours with 12 hours, which creates a hybrid arrangement.  This is, in essence, a combination of day worker and shift worker.  Clause 3.05 does not provide for that combination of eight and 12–hour shifts just because the majority had accepted a 12–hour shift. The employer suggested that Exhibit G–11 did not talk about rotation.  Mr. Laalo testified that everyone knew that a 12–hour, five–week schedule involved a rotation into maintenance.

[48]   Ms. Bramwell asked me to consider Mr. Greenough’s testimony as contradictory; he did not answer the questions, and his answers changed and often contradicted Mr. Wilson’s evidence.  Mr. Greenough may not be the most reliable witness, she suggested.  He seemed to be trying so hard to make sure his answers would support the results.

[49]   Ms. Bramwell referred me to Léger v. Treasury Board (Transport Canada), PSSRB File Nos. 166–2–18740 and 166–2–18616 (1989) (QL).  She also referred me to Canadian Labour Arbitration, Third Edition, by Messrs. Brown and Beatty, on estoppel.

[50]   Ms. Bramwell requested a declaratory order that subclause 3.05(c) was breached and that the former special arrangement at each plant be reverted to.  With regard to damages that flow from the breach of the collective agreement, Ms. Bramwell asked that I remain seized in case the parties are not able to agree on the damages.

For the employer

[51]   Mr. Jaworski submitted that, at the end of the day there are not a lot of facts in dispute.  The heating plants in the National Capital Region operate 365 days per year, seven days per week, and 24 hours per day.  There are two aspects to the work performed by HP–3s and HP–5s: ensuring the operation of the plants on a continuous basis and maintaining those systems.  On the maintenance side, there is both preventive maintenance and breakdown maintenance.

[52]   Mr. Jaworski noted that the operators work on a schedule.  If you look at the schedule for the Cliff Street Plant (Exhibit G–4), there is a bottom part and a top part of the schedule.  The HP–3s and HP–5s on the top part work as the shift operators and shift supervisors.  On the bottom part of the schedule, the HPs are working on maintenance on an eight–hour basis.  There is one schedule for one plant.  Originally, in the collective agreement, three eight–hour shifts were envisaged.  The employees came forward with a proposal for two 12–hour shifts and the employer agreed to try it.  This was not an agreement to a 12–week shift, but rather an agreement to 12–hour shifts.

[53]   Mr. Jaworski submitted that 25 years later, there was a different work environment.  Management was having trouble keeping people just in maintenance and these people wanted to do shift work.  Management could not move employees from one plant to another.  The 12–hour shifts were too lucrative.

[54]   Mr. Jaworski noted that the new schedule (Exhibit G–4) implemented by management was a five–week schedule.  The evidence of what the employer wanted is clear; it wanted to rotate employees through both operations and maintenance, or between the top and the bottom of the schedule.  The reason why it was set at five weeks was that that is how it could be done within the parameters of the workforce and the collective agreement.  There were only so many bodies and there were restrictions on how management could use them.  Rotating the employees gave everybody a fair shake at 12–hour shifts and maintenance, as well.  Mr. Greenough testified that there were only so many ways to create a shift schedule.  The rotation through both shifts involved either a five–week or a 12–week schedule.  If management had gone with the 12–week schedule, certain employees would stay on maintenance for a full four weeks.  Management opted for five weeks because it lessened the time that an employee would do maintenance work.  Maintenance work is included in the job descriptions.  The evidence from Mr. Wilson was that plant supervisors were instructed to post a number of five–week schedules in advance so employees could plan ahead.  The only other change is the rotation.  The 12–hour shifts are still there.  The difference is that now some of the HPs have to do maintenance.  All of the grievors had been doing 12–hour shifts almost exclusively.  There were no grievances from employees who did not want to do 12–hour shifts.

[55]   Mr. Jaworski submitted that clause 25.05 was applicable here.  This clause sets out how far in advance a schedule must be posted and the duration of any such schedule.  There was no breach of this provision.  Clause 28.01 does not define “work unit”.  Clause 28.04 specifies the employer’s right to schedule any hours of work permitted by the terms of the collective agreement.  Clause 3.04 of Appendix “D” does not say that the employer cannot schedule in another manner.  Clause 3.05 of Appendix “D” has to be read in conjunction with the entire collective agreement.  As well, in clause 3.05 you cannot read (c) without (a) or (b).  Mr. Jaworski submitted that we never get to (c).   Management decided to rotate the bodies through maintenance and shift operator positions; that was the only change that was made.  The shifts were not changed.  There are still two shifts: operator shift and maintenance shift.  The employee’s position is not tied to the top or bottom of the schedule.  What a number of people would like is to remain at the top of the schedule and be a shift operator who does not have to do maintenance.  All the employer is doing is rotating HP–3s and HP–5s through both the maintenance and operator portions of the schedule.

[56]   Mr. Jaworski noted that the memorandum by Mr. Laalo that was posted in the plants (Exhibit G–11) does not talk about the rotation.  Mr. Laalo testified that only those working the 12–hour shift should be voting.

[57]   Mr. Jaworski submitted that the collective agreement allows the employer to schedule work as it deems fit.  If employees do not want to work a 12–hour shift and it is imposed, then the employer is required to pay overtime.  However, these grievances are not about a return to eight–hour shifts, but are about maintaining 12–hour shifts.

[58]   Mr. Jaworski argued that employees are not designated as shift workers or day workers.  It is when the work hours fit the definitions in the collective agreement that the tag of day worker or shift worker is applied to them.  The “special arrangement” referred to in subclause 3.05(c) of Appendix “D” applies to changing the hours of work to something not contemplated in the collective agreement, for example, going to a six–hour shift.  The 12–hour shift is mutually agreed to.  If management was unilaterally trying to change the shifts from eight hours to 12 hours, that is the change envisaged by clause 3.05.  If the eight–hour maintenance relief employees were complaining about the change to 12–hour shifts, that would be different.  Those people were not before the Board.

[59]   With regard to Mr. Greenough’s evidence and the comments made by Ms. Bramwell, Mr. Jaworski submitted that all of the witnesses told nothing but the truth, as well as memory could allow.  The difference lies in the interpretation of what they are saying.

[60]   Mr. Jaworski submitted that the fundamental difference between the 12–week and five–week schedule is not that one is shorter.  It is that workers used to getting a premium now have to do a job that they do not like.  That is not a special arrangement; the work is always there and is not special.

[61]   Mr. Jaworski distinguished Léger v. Treasury Board (Transport Canada) (supra), stating that the circumstances were quite different in that case.  He also referred me to Re Lawson Packaging, Division of Exford Paper Boxes Ltd. and Printing Specialists and Paper Products, Local 466 (1973), 2 L.A.C. (2d) 408, which states that the employer is entitled to schedule work as it deems fit.  Mr. Jaworski referred me to UCCO–SACC–CSN v. Treasury Board, 2004 PSSRB 38.  Changing the hours of work is well within the employer’s rights.

[62]   In conclusion, Mr. Jaworski stated that the burden of proof had not been met by the grievors and it is clear that the employer was allowed under the collective agreement to do what it did.

Reply

[63]   Ms. Bramwell stated that the UCCO–SACC–CSN v. Treasury Board decision (supra) has very little application to this case, as it appeared that estoppel was not argued.  Ms. Bramwell also noted that in Re Lawson Packaging (supra), the reference is to “private arrangements”, not collective agreement rights.  Here, in this case, there are significant restrictions on the employer’s ability to impose shift schedules.

[64]   Ms. Bramwell submitted that there were some inconsistencies in Mr. Jaworski’s recounting of the facts.  If you look at Exhibit G–4, one can see that at the Cliff Street Plant, even on the new 12–hour, five–week schedule, there are still people doing only straight days on maintenance.  Mr. Jaworski also stated that no one on maintenance relief filed a grievance.  In fact, D. Chappell, at the Central Experimental Farm, filed a grievance.

[65]   Ms. Bramwell stated that the grievances mention nothing about employees being assigned maintenance duties.  Maintenance is included in the job descriptions (Exhibits E–1 and E–4).  Mr. Jaworski suggested that all the HPs could become day workers.  However, the job description specifically refers to “rotating shift schedules”.  Mr. Jaworski also referred to the fact that at the beginning of 12–hour shifts, no one was concerned about 12–week or five–week schedules.  The exact opposite is true.  In Exhibit G–5, there is an example of a plant where they chose between a 12–week and a five–week schedule.

[66]   Ms. Bramwell suggested that the problem in getting people to work maintenance is a staffing problem, not a shift problem.  This issue is addressed in Exhibits E–6 and E–7, as well as in Mr. Greenough’s summary in Exhibit E–5.  Mr. Jaworski’s suggestion that rotation was the only change in the switch from a 12–week to a five–week schedule is wrong; it was not the only change, nor was it the most important.  Instead of being shift workers all the time, the employees are now mixing shift work with day work.  This is the real difference and it has an impact on the personal lives of these employees.

[67]   Ms. Bramwell argued that clause 28.04 makes it clear that the employer does have the right to revert to hours that are not special arrangements, “permitted by the terms of the agreement”.  In other words, it allows the employer to revert to the terms of clause 3.04 of Appendix “D”.

[68]   Ms. Bramwell submitted that subclauses 3.05(a) and (b) apply to an individual who wants to vary hours of work or to one group of employees who want to vary hours, such as the start time.  Both of the concepts in (a) and (b) are different from the new shift arrangement covered off in (c).

Reasons

[69]   At the end of the day, there is little disagreement about the essential facts of this dispute.  What is at the core of the dispute is the proper interpretation of the collective agreement provision regarding variable hours (Article 28 and clause 3.05 of Appendix “D”).  Article 28 is a general provision permitting variable hours.  The specific provisions are contained in clause 3.05 of Appendix “D”.  The provisions central to this dispute are as follows:

APPENDIX "D"
HEATING, POWER AND STATIONARY PLANT
GROUP SPECIFIC PROVISIONS AND RATES OF PAY

Notwithstanding the general provisions of this collective agreement, the following specific provisions shall apply to employees performing duties in the Heating, Power and Stationary Plant Group.

[…]

Hours of Work

[…]

3.04   When, because of the operational requirements of the service, hours of work are scheduled for employees on a rotating or irregular basis:

1. they shall be scheduled so that employees:

   (i) on a weekly basis, work an average of forty (40) hours and an average of five (5) days per week, and

   (ii) on a daily basis, work eight (8) hours per day;

[…]

3.05   Twelve (12)–Hour Shifts and Other Variable Hours of Work

1. Notwithstanding the provisions of this Article, employees with the approval of the Employer, may complete their weekly hours of employment in a period other than five (5) full days provided that over a period to be determined by the Employer, employees work an average of forty (40) hours per week. In every such period employees shall be granted days of rest on days not scheduled as normal work days for them.

2. Notwithstanding anything to the contrary contained in this Agreement, the implementation of any variation in hours shall not result in any additional overtime work or additional payment by reason only of such variation, nor shall it be deemed to prohibit the right of the Employer to schedule any hours of work permitted by the terms of this Agreement.

3. Any special arrangement, including twelve (12)–hour shifts, may be at the request of either party and must be mutually agreed between the Employer and the majority of employees affected and shall apply to all employees at the work unit.

General

[…]

4.02

1. The Employer agrees that, before a schedule of working hours is changed, the change will be discussed with the appropriate steward of the Alliance if the change will affect a majority of the employees governed by the schedule.

[…]

[70]   The employer’s position is succinctly summarized in the response to the third level grievance hearing (February 7, 2003):

[…]

…working hours have not changed within the work unit, which is defined by management as Utility Management Services. They are still 12 and 8 hour shifts. Only the length of the schedule has been altered.

[…]

[71]   The union’s position is that the change to a five–week schedule resulted in changes in the hours of work for the individual grievors, who are now required to work both 12–hour and 8–hour shifts.  It is the union’s position that a majority of the employees at each plant should have voted on this proposal and, in essence, have a chance to vote between the existing schedule and the new proposal of management.

[72]   The collective agreement sets out the limits on management’s ability to determine hours of work.  The collective agreement sets out the default, or normal, hours of work in clauses 3.03 and 3.04 of Appendix “D” (see above).  It was common ground between the parties that clause 3.04 is the applicable clause (clause 3.03 applies to day workers).  Clause 3.04 establishes the default of eight–hour shifts. 

[73]   The only permitted exceptions to eight–hour shifts are governed by clause 3.05. In particular, subclause 3.05(c) provides:

3. Any special arrangement, including twelve (12)–hour shifts, may be at the request of either party and must be mutually agreed between the Employer and the majority of employees affected and shall apply to all employees at the work unit. 

[74]   The introduction of a “special arrangement” (or, in other words, any hours of work different from those set out in clause 3.03 or 3.04) requires the agreement of the employer and the majority of affected employees.  In order to have hours of work different from the standard eight–hour shift, such as a 12–hour shift, either the bargaining agent or the employer must first request the special arrangement.  The employer and the majority of affected employees must then agree to the proposed special arrangement before it can be implemented.  The employer’s choice is clear: either it can accept a special arrangement that the majority of employees also accept, or it can schedule hours of work as provided for in clause 3.04 (the standard hours of work).  The choice for the majority of employees is also clear: either they can accept the special arrangement proposed by the employer or the bargaining agent, or they can work according to the standard hours contained in clause 3.04.  Of course, if the employer and the majority of employees are both interested in hours of work different from those specified in clause 3.04, it will be in their mutual interests to come to an agreement on an acceptable special arrangement.   

[75]   There is no dispute that a majority of the employees at the plants in question supported a change to 12–hour shifts back in the late 1970s.  It does not seem either logical or fair that the wishes of employees taken over 25 years ago should bind employees forever.  A more logical interpretation is that the acceptance by a majority of the current employees of that special arrangement is determined by the fact that the bargaining agent has not proposed an alternative special arrangement (which would still require employer acceptance) and has not insisted on a return to the standard eight–hour shift.

[76]   The employer is also not bound forever by its acceptance of a special arrangement.  Operational requirements can change over time, as can the views of the employer as to how to manage those operational requirements.  However, the options of the employer are limited to proposing a new special arrangement that is accepted by a majority of affected employees or reverting to the standard eight–hour shift provided for in clause 3.04.

[77]   The special arrangement that the employer and the majority of employees accepted provided for a mixture of eight and 12–hour shifts, with two separate groups of employees working different shifts.  It is clear that at the plants where the grievors worked, there were two distinct groups: those working eight–hour shifts and those working 12–hour shifts.  It is clear that the two groups of employees are not interchangeable.  In Copeman v. Treasury Board (Department of National Defence), PSSRB File No. 166–2–21686 (1992), an HP employee working the eight–hour maintenance rotation was required to work four 12–hour shifts and in lieu given only four eight–hour shifts off.  The adjudicator concluded:

[…]

…The employer is of the opinion that because of the implementation of the twelve hour shift cycle, and the agreement of the employees to cover off that two day period [of 12–hour shifts] in the shift cycle, the employer can request an employee to work any twelve hour shift, and in return be granted eight hours off in lieu.  I do not agree.

[…]

[78]   The employer has argued that since it maintained the 12 and eight–hour shifts, there is no new special arrangement.  However, for the individuals subject to the arrangement of hours, their hours of work have changed because of the new requirement of a rotation through both 12–hour and eight–hour shifts.  The employer is free to change the length of the schedule, within the limit set by the collective agreement.  Clause 3.04 provides that the employer is to determine the period of time over which the special arrangement is to be scheduled.  The length of the schedule is therefore not the issue.  It is the rotation through the eight–hour and 12–hour shifts that changes the nature of the special arrangement.  When the employer imposed the five–week rotational schedule, the hours of work scheduled for employees were changed.  The new rotational schedule imposed by the employer changes the hours of work of all the grievors.  I must, therefore, conclude that the new schedule is a new special arrangement that requires majority support of the affected employees.

[79]   A special arrangement is based on a mutual agreement between the employer and a majority of the employees.  When that consensus on the special arrangement is gone, so is the special arrangement.  The bargaining agent, who speaks for the employees, advised the employer that a vote was required.  This demonstrates that the consensus on the special arrangement was in question.  At that point, it had the option of putting its proposed changes to the affected employees for a vote, maintaining the existing special arrangement, or reverting to the default provision for hours of work under the collective agreement – in other words, eight–hour shifts.

[80]   In short, it is not open to the employer to impose a special arrangement on its employees.  The views of the majority of affected employees must be obtained to determine if the majority agree to the special arrangement.  As I have indicated, the choice for employees is not necessarily between the existing special arrangement and the new special arrangement.  This is because the agreement of the employer is required for any special arrangement and the employer must still agree to the existing special arrangement.   

[81]   There are, or should be, strong motivations for the employer and the bargaining agent to come to a common understanding on hours of work.  This is because the collective agreement only allows for variations from the norm of eight–hour shifts with the agreement of the employer and a majority of the employees.  There are certain advantages for employees in having 12–hour shifts. There are also advantages for the employer in such arrangements.  The employer has based its operations, including staffing levels, on the basis of 12–hour shifts.  There could be serious operational concerns if a majority of employees decided they no longer wanted 12–hour shifts and wanted to return to eight–hour shifts.  Given the potentially precarious nature of the arrangement of hours, one would expect that the employer would take into account the concerns of its employees in any changes to that work schedule.  Similarly, the employees are dependent on the interest of the employer in maintaining 12–hour shifts, since the employer could also force the return of eight–hour shifts.

[82]   Consequently, it was not open to the employer to impose a different special arrangement on the HP employees at the affected plants.  The collective agreement dictates that the employer must first obtain the agreement of a majority of the affected employees.  The collective agreement also dictates that the choice faced by the employees at that point is not necessarily between the current special arrangement and the proposed special arrangement, if the employer no longer agrees to the existing special arrangement, but a choice between the proposed special arrangement and a return to standard hours of work.  It is open to the employer, of course, to retain the original special arrangement (which has majority support) if its proposed special arrangement is not accepted by the majority of affected employees.

[83]   The agreement between the employer and the majority of employees is not fixed in stone.  There was sufficient information provided to the employer that would indicate the strong possibility of no majority support for the special arrangement proposed and implemented by the employer.  There is not sufficient evidence, however, for me to conclude what the wishes of the majority of employees were.  The question put to the employees in Mr. Laalo’s memorandum (Exhibit G–11) was premature, as it referenced what the bargaining agent thought the employer would be proposing.  It also did not put the question clearly to the employees.  The appropriate question can only be determined after the parties have discussed the options.  In other words, if it is the employer’s view that it no longer supports the existing arrangement, that should be made clear in its communication to the employees.

[84]   How the agreement of the majority of employees is determined is not specified in the collective agreement.  The past practice was to obtain signatures at each plant.  Obtaining the signatures of employees is likely a best practice, given that it is important to determine that there is an agreement between the employer and the employees.  However, the mechanism for determining the majority support of the employees is best left to the parties.  In terms of who are the “affected employees”, common sense would dictate that it would include all employees who would be governed by the proposed special arrangement.  If employees are on an eight–hour shift, and the special arrangement will not change these hours, then they are not affected.  If, however, their hours of work will change (for example, to 12–hour shifts), then they are affected.

[85]   The collective agreement also refers to the “work unit”.  “Work unit” is not defined in the collective agreement.  The grievor’s representative argued that estoppel applied in the definition of “work unit”, as the parties had consistently treated each plant as a work unit.  I think that past practice can be used as an aid to interpreting the term “work unit” to the extent that the term is ambiguous.  As noted in Re International Association of Machinists, Local 1740, v. John Bertram & SonsCo. Ltd., (1967) 18 L.A.C. 362:

[…]

…The principal reason for this is that the best evidence of the meaning most consistent with the agreement is that mutually accepted by the parties…

[…]

[86]   However, even a straight reading of the provision supports the conclusion that “work unit” applies to a single plant.  The definition of “unit” in the Oxford Concise Dictionary is “…each of the individual components making up a larger whole”.  There is also a sense of a unit being a distinct part of a larger organization.  It is also common to consider a work unit as being a group of employees that work together as a team (see Gérard Dion, Dictionnaire canadien des relations du travail, 2 e édition).  In addition, there was evidence that the day–to–day operations of each plant were decided at the plant level, including the scheduling of overtime and the approval of leave.  The past practice of the parties with regard to instituting and changing special arrangements buttresses this interpretation of the “work unit”.  Therefore, I find that the most appropriate definition of “work unit” is the individual plant.

[87]   Counsel for the employer argued that clause 4.02 of the Group Specific provisions was applicable.  This clause refers to a temporary change to an already established schedule.  It does not apply to the creation of a special arrangement.  Similarly, clause 25.05 of the collective agreement refers to the posting of a schedule, and not to the establishment of a new special arrangement.  A special arrangement and a shift schedule are not the same thing.  A special arrangement determines what the shifts for employees will be and from that special arrangement, a shift schedule is developed.  A shift schedule is a document that sets out who works what shift and establishes days of rest.

[88]   The grievors’ representative referred me to the Léger (supra) decision.  In that case, the employer altered the scheduled hours of work from 12–hour to eight–hour shifts; in effect, reverting to the default provision in the collective agreement.  I agree that the employer has the right to unilaterally revert to the default or normal hours of work as provided for in the collective agreement.  However, this decision has little relevance to the issue here.

[89]   Counsel for the employer referred me to Lawson (supra).  The issue in that decision was whether or not the employer could transfer an employee from one sort of schedule to another where both types of schedules were provided for in the collective agreement.  This is not the issue in these grievances.  Here, the issue is whether the employer can change the schedule to one that is not specifically provided for in the collective agreement.

[90]   Counsel for the employer also referred me to the decision of the Board in UCCO–SACC–CSN v. Treasury Board (supra).  In that decision, there was an alleged violation of the freeze provisions of the PSSRA.  The change in the schedule was to add a half–hour unpaid lunch break to the schedule.  The Board held that the change was allowed under the collective agreement and was therefore not a breach of the freeze provisions.  In these grievances, the change to the schedule proposed by the employer is significantly different than the addition of a half–hour unpaid lunch break, which is something contemplated by the collective agreement.  As I have already noted, the change implemented by the employer is not provided for in the collective agreement.

[91]   Accordingly, I issue a declaration that the employer breached the collective agreement in its unilateral introduction of a new special arrangement. What remedies flow from this determination will depend on how the parties respond to it.  If the employer and employees cannot come to an agreement on a special arrangement, then there will be a return to eight–hour shifts.  If the employer agrees to return to the previous special arrangement, there will be certain damages that flow from that.  If the employees agree to the proposed special arrangement imposed by the employer in November 2002, the current special arrangement will be maintained and there will be no damages.  If the employer and the employees come to an agreement on a special arrangement different from the one imposed by the employer, then there will likely be certain remedies that flow from that special arrangement.  In order to put the parties in the position they would have been in without the breach of the collective agreement, it is necessary to look at what should have happened back in October 2002.  If the employer had recognized that majority support for a changed special arrangement was required, what would have occurred?  As noted above, the development of a special arrangement is a delicate negotiation process, given that the failure to agree is a reversion to the default hours in the collective agreement.  For this reason, it is difficult to determine what the employer and the employees would have agreed to back in October 2002.  As a result of this uncertainty about remedies, I will retain jurisdiction for a period of 90 days from the date of this decision to address any difficulties that the parties might have in coming to an agreement on a special arrangement.

[92]   For all of the above reasons, I make the following order:

Order

[93]   A declaration that the employer breached subclause 3.05(c) of Appendix “D” (Group Specific provisions).   I will remain seized for a period of 90 days from the date of this decision to address any matters relating to the implementation of this decision.

July 4, 2005.

Ian R. Mackenzie,
adjudicator

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