FPSLREB Decisions

I. Group grievance referred to adjudication

1 This decision addresses an objection by the Department of National Defence (“the employer”) to the jurisdiction of an adjudicator to hear the group grievance referred to adjudication by the International Brotherhood of Electrical Workers, Local 2228 (“the bargaining agent”) under section 216 of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”).

2 On July 8, 2005, the bargaining agent filed a group grievance on behalf of 16 employees of the Department of National Defence in the Electronics (EL) Group (“the employees”) working at Fleet Maintenance Facility (FMF) Cape Breton, Canadian Forces Base Esquimalt. The bargaining agent stated the cause of the grievance as follows:

Being instructed to work evening and night shifts for sea trials in violation of article 32 of the EL Group collective agreement.

3 Article 32 of the collective agreement between the Treasury Board and the bargaining agent that expired on August 31, 2004 (“the collective agreement”), reads as follows:

ARTICLE 32 SEA TRIALS' ALLOWANCE

32.01(a) When an employee is required to be in a submarine during trials under the following conditions:

(i) he/she is in a submarine when it is in a closed down condition either alongside a jetty or within a harbour, on the surface or submerged; i.e., when the pressure hull is sealed and undergoing trials such as vacuum tests, high pressure tests, short trials, battery ventilation trials or other recognized former trials, or the submarine is rigged for diving;

or

(ii) he/she is in a submarine when it is beyond the harbour limits on the surface or submerged;

or

(b) when an employee is required to proceed to sea beyond the harbour limits aboard a HMC Ship, Auxiliary Vessel or Yardcraft for the purpose of conducting trials, repairing defects or dumping ammunition;

or

(c) when an employee is required to work in a shore-based work site in direct support of an ongoing sea trial;

he/she shall be compensated in accordance with clause 32.03.

32.02 Article 23.13 (Encroachment) shall be applied at the termination of the sea trial only.

32.03(a) He/she shall be paid at the employee's straight-time rate for all hours during his/her regularly scheduled hours of work and for all unworked hours aboard the vessel or at the shore-based work site.

(b) He/she shall be paid overtime at time and one-half (1 1/2) the employee's straight-time hourly rate for all hours worked in excess of the regularly scheduled hours of work up to twelve (12) hours.

(c) After this period of work, the employee shall be paid twice (2) his/her straight-time hourly rate for all hours worked in excess of twelve (12) hours.

(d) After this period of work, the employee shall be paid three (3) times his/her straight-time hourly rate for all hours worked in excess of sixteen (16) hours.

(e) Where an employee is entitled to triple (3) time in accordance with (d) above, the employee shall continue to be compensated for all hours worked at triple (3) time until he/she is given a period of rest of at least ten (10) consecutive hours.

(f) Upon return from the sea trial, an employee who qualified under 32.03(d) shall not be required to report for work on his/her regularly scheduled shift until a period of ten (10) hours has elapsed from the end of the period of work that exceeded fifteen (15) hours.

32.04 In addition, an employee shall receive a submarine trials allowance equal to twenty-five per cent (25%) of his/her basic hourly rate for each completed one-half (1/2) hour he/she is required to be in a submarine during trials as per the conditions prescribed in sub-clause 32.01(a).

(The collective agreement that expired on August 31, 2004, remained in force at the time the bargaining agent filed the group grievance. The parties signed a new collective agreement on December 22, 2005.)

4 As corrective action, the bargaining agent asked that the employer withdraw the instructions to employees “… to work shifts for sea trials … .”

5 After receiving the employer’s final-level reply denying the grievance, the bargaining agent referred the matter to the Public Service Labour Relations Board (“the Board”) for adjudication on May 11, 2006. The bargaining agent indicated in its filing that the group grievance also concerned article 23 (Hours of Work) of the collective agreement.

6 On December 20, 2006, the bargaining agent asked the Board to hold 14 individual grievances in abeyance (PSLRB File Nos. 566-02-580 through 593) pending a decision regarding the group grievance. The employer responded on January 5, 2007, that it did not concur with the bargaining agent’s request, and it also gave notice of its position that the group grievance was premature:

…

The group grievance is against the issuance of a “Work Instruction” (WI) that management posted dealing with overtime. However, at the time the group grievance was filed, none of the grievors had been personally affected by this WI as none had been required to work a Sea Trial. Therefore, it cannot be said that those employees were “aggrieved” at the time the group grievance was filed.

However, the individual grievances do relate to the application of the WI to each grievor when they were required to work a Sea Trial(s), which occurred after the group grievance was filed. Therefore, unlike the group grievance, there exists a factual underpinning upon which an adjudicator can base his/her decision.

Consequently, and in the interest of efficient use of the Board’s resources, the employer suggests that both the individual and group grievances be dealt with at the same time at one hearing.

…

7 The bargaining agent replied to the employer’s submission as follows:

…

… the Union feels strongly that this Group Grievance is not premature. It is clearly grieving the interpretation of the Collective Agreement as interpreted in the Work Instruction, while the Individual Grievances are grieving the interpretation and application.

And since all of these Grievances have, at their essence, a difference of opinion on the interpretation, we feel that the best way to proceed, for all parties, is to put this interpretation before a third party without the side issues raised by the Individual Grievances.

Therefore the Union confirms our desire to proceed to Adjudication on the Group Grievance and to place the Individual Grievances in abeyance pending resolution of the Group Grievance.

…

8 In response to a request from the Board, the employer provided more detailed submissions on January 26, 2007:

…

… the right to refer a group grievance to adjudication stems from section 215 of the new PSLRA, which stipulates that:

215. (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

(2) In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned in the form provided for by the regulations. The consent of an employee is valid only in respect of the particular group grievance for which it is obtained.

The point the employer wishes to convey is that for a Group Grievance or an Individual Grievance to be referred to adjudication and for the adjudicator to have jurisdiction to hear the grievance, the grievor or group of grievors must feel aggrieved by the interpretation or application of a provision of a collective agreement or arbitral award. Otherwise the issue is only one of a hypothetical situation and cannot properly be reviewed, in the opinion of the employer, by an adjudicator.

…

The employer, however, contends that there is a provision in the PSLRA for such hypothetical situations. It is called a Policy Grievance … .

…

Section 220 of the PSLRA states:

220. (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.

It [sic] the employer’s position that the bargaining agent cannot present a Group Grievance for hypothetical situations and accordingly, we respectfully ask the Board to dismiss this reference to adjudication, without an oral hearing for lack of jurisdiction. If the employer does not obtain this order, it respectfully asks that the bargaining agent express in writing why, in their opinion, the Board has jurisdiction to hear this case.

Alternatively, the employer would not object to having a Pre-conference Hearing [sic] to address the jurisdiction issue.

…

[Emphasis in the original]

9 By letter dated January 29, 2007, a Registry Operations Officer conveyed to the parties the Chairperson’s decision granting the bargaining agent’s request to hold the individual grievances in abeyance pending the outcome of the group grievance.

10 The Chairperson has appointed me as an adjudicator to hear and determine the group grievance.

11 At the outset of the hearing on February 26, 2008, the employer confirmed that it maintained its position that an adjudicator is without jurisdiction to consider the group grievance, given that it was premature. After receiving submissions on procedure from the parties, I ruled that the hearing would turn first to evidence and arguments on the jurisdictional issue, after which I would decide whether to issue a decision on the objection or to reserve my decision, continue with the merits and issue a combined decision on jurisdiction and the merits.

II. Summary of the evidence

12 The bargaining agent presented five exhibits on consent: (i) the collective agreement (Exhibit G-1); (ii) the group grievance (Exhibit G-2); and the employer’s responses to the grievance at the first, second and final levels of the grievance process (Exhibits G-3 to G-5).

13 The employer called one witness to testify on the preliminary matter. The bargaining agent decided not to call any witnesses.

14 Since September 2004, Edward Hix has been the acting head, and then the head, of the combat systems engineering section at FMF Cape Breton, which includes all members of the EL Group working at that facility. Through subordinate subsection managers, Mr. Hix has responsibility for 46 employees covered by 4 collective agreements. He reports to the establishment’s engineering manager.

15 Mr. Hix testified that he received and signed the group grievance (Exhibit G-2) as the responding first-level officer in the grievance procedure. He indicated that he had some difficulty at the time knowing exactly what the grievance meant. Edward Fletcher, a representative of the bargaining agent, told him that the grievance was filed because, in the bargaining agent’s opinion, the employer could not place the employees on shifts for the purpose of conducting sea trials.

16 Mr. Hix stated that he knew of no situation where the employer had placed employees in the EL Group at FMF Cape Breton on night shifts. Clause 23.15 of the collective agreement, instead, permitted the employer to change employees’ regular hours. Management gave notice of such a change for the first time on July 5, 2005. To the best of his knowledge, no similar situation had occurred in the section before that date other than when management directed an EL Group employee to change hours for the purpose of a sea trial at the end of the previous fiscal year. In that case, however, the planned sea trial never took place.

17 Mr Hix stated that the bargaining agent filed the group grievance on July 8, 2005, in response to the notice given by management. According to Mr. Hix, no employee as of that date had actually been required to start work at a different time.

18 Mr. Hix outlined that his principals tasked his section to organize sea trials at the Naval Electronic Sensor Test Range Pacific (NESTRP) starting on July 11, 2005. The Chief Petty Officer coordinating the trials sent an email to three employees — William Skrobotz, Richard Buckley and Jay Vinden — telling them to report to work at 15:00 on that date (Exhibit E-1).

19 Asked whether the three individuals actually reported for duty at 15:00 on July 11, 2005, Mr. Hix testified that he understood that one of the employees, Mr. Vinden, came to work that day at 07:00 and later reported for the sea trial at 15:00.

20 According to Mr. Hix, as of July 8, 2005, the employer had not instructed any of the other signatories to the group grievance that their hours of work had been shifted.

21 In cross-examination, Mr. Hix reconfirmed that the only other situation from January 2004 to July 8, 2005, when the employer had required an employee in the EL Group to change work hours for sea trials was the work requirement planned in March 2005 that, in the end, did not happen. He reported that employees generally began their workday between 07:00 and 08:00 and worked for 7.5 hours between 07:00 and 17:00 with one half-hour break. He confirmed that article 32 of the collective agreement does refer to those hours as a regular shift and that employees working a regular shift are referred to as “non-operating employees” under clause 2.01(s).

22 The bargaining agent’s counsel asked Mr. Hix whether the July 5, 2005, direction to the three employees to shift their work hours was the result of Mr. Hix’s promulgation of a document entitled “Combat Systems Overtime and Associated Premium Management” (Exhibit E-2). He answered in the affirmative and confirmed that the “the OT directive” mentioned in the email of July 5, 2005, was that document. Mr. Hix explained that among other subjects, the document provided guidance to employees about reporting their overtime on the “DND 907” form and inputting approved overtime using the online “MASIS” system.

23 Mr. Hix testified that he did not receive any indication between July 5 and 8, 2005, that the three employees would not report for duty at 15:00 on July 11, 2005, as required. He also stated that the sea trial did go ahead on July 11, 2005, and that none of the three employees refused to report for sea trial duty.

24 After discussing in greater detail the use and processing of “DND 907” forms and the entry of overtime data into the MASIS system by employees, Mr. Hix identified two “DND 907” forms reporting overtime worked on July 11 and 12, 2005, one submitted by Mr. Vinden (Exhibit G-6) and the other by Mr. Buckley (Exhibit G-7). He confirmed that his handwritten note on each form indicated that he had refused approval of the overtime because, in his view, the requests for overtime compensation were not in accordance with the collective agreement or with the instructions about overtime that he had given employees in his section (Exhibit E-1).

25 In re-examination, Mr. Hix elaborated that, according to his understanding of the collective agreement, the overtime rate of time and one-half should not have started at 15:00 on July 11, 2005, as was claimed by the employees on their forms. He also clarified that the employer eventually did pay Mr. Vinden from 07:00 that day even though he had not followed instructions to begin work at 15:00.

III. Summary of the oral arguments

A. For the employer

26 The employer submitted Fok and Granger v. Treasury Board (Department of Transport), 2006 PSLRB 93, as the leading case addressing prematurity in the submission of grievances. He directed my attention, in particular, to the following excerpt:

[17] There is nothing new in my finding that the grievances are premature. From 1982, in Reid v. Treasury Board (Department of National Defence), PSSRB File No. 166-02-12631, through 1993, in Nicholson v. Treasury Board (Ministry of Transport), PSSRB File No. 166-02-22548, there are no fewer than seven decisions concerning jurisdiction over premature or prospective grievances, all of which reject jurisdiction. There is no compelling reason for me to deviate from this consistent approach, and I agree with adjudicator Steward’s reasoning in Reid, at paragraphs 25 and 26, which read as follows:

…

[25] Although the grievor suffered no financial loss, he believes that he has a legitimate grievance. However, it was not demonstrated to me that I have jurisdiction under subsection 91(1) of the Act to decide the matter because that section, reproduced below, makes it clear that Mr. Reid’s right to present a grievance to adjudication can only be exercised with respect to the interpretation or application “in respect of him” of a provision of a collective agreement.

[26] This means that Mr. Reid must have an actual grievance, and not a prospective one, in order for me to have jurisdiction. By his own admission, the grievor has suffered no prejudice and the only redress he seeks is a declaration that his interpretation of paragraph 30.12(b) of the collective agreement is correct. Clearly, he has no grievance per se and I have, therefore, no jurisdiction to make an award.

…

27 To be entitled to submit a group grievance, according to the employer, participating employees must demonstrate that they have been aggrieved. That condition precedent is expressed in subsection 215(1) of the Act:

      215. (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

28 In the case of group grievances, unlike policy grievances, there must be an actual personal effect on employees of an employer’s interpretation or application of a provision of the collective agreement, and that effect must be “common in respect of those employees.”

29 According to the employer, because the bargaining agent did not call any witnesses, there is no evidence that explains how and why the grievors were affected by the employer’s action. I have before me only the grievance itself, which does not meet the threshold of establishing some actual personal effect. As of the date of the group grievance, July 8, 2005, no employee had suffered any prejudice. The sea trial scheduled for July 11, 2005, had not yet taken place, yet the bargaining agent alleges without basis that the employees were aggrieved when the grievance was filed. On July 8, 2005, the grievance was premature. The bargaining agent either should have waited until the employees were actually affected or could have submitted a policy grievance on their behalf.

30 The employer concluded that I should dismiss the group grievance because it was prematurely submitted, thus depriving me of jurisdiction under subsection 215(1) of the Act.

B. For the bargaining agent

31 The bargaining agent argued that subsection 215(1) of the Act requires that employees “… feel aggrieved …” by the employer’s interpretation of the collective agreement. This group grievance meets that test. The employees who signed the grievance dated July 8, 2005, were of the opinion that they were aggrieved by the employer’s interpretation of the collective agreement as expressed in the email sent on July 5, 2005 (Exhibit E-1). In the bargaining agent’s submission, that document comprised an official notice that the employer had invoked clause 23.15 — incorrectly in the employees’ view — to change work hours. The bargaining agent asked, “What could be more real than that?”

32 Had the employer not issued Exhibit E-1, according to the bargaining agent, the group grievance certainly would have been premature. The July 5, 2005, email was, however, a concrete act with an impact that was far from hypothetical. The fact that no employee had actually reported for a sea trial as of that date of the grievance is irrelevant. Once the employer gave notice, the change introduced by that notice personally affected the employees, thus establishing their right to grieve under subsection 215(1) of the Act.

33 In the bargaining agent’s submissions, the facts of this case are readily distinguished from those in Fok. In particular the employer’s direction that was the subject of the grievances in Fok was subsequently modified and then reversed and never carried out. That made the issue raised in the grievances moot, as reflected in the ruling in Fok. Such is not the case with the group grievance now before me. The employer’s instructions to employees to shift their hours remained “alive and well” and were carried through.

34  The bargaining agent urged that I consider Nicholson v. Treasury Board (Ministry of Transport), PSSRB File No. 166-02-22548 (19930114), also a case where the employer objected that a grievance was filed prematurely. In dismissing the objection, the adjudicator advanced a rationale, in the bargaining agent’s submission, that applies equally to the current case:

…

It has been established both in the jurisprudence of this Board and elsewhere that a grievance must be "ripe" before it can be referred to adjudication. The issue being grieved must be real and not hypothetical. But there are exceptions. The issue of "premature grievances" is dealt with in the text Evidence and Procedure in Canadian Labour Arbitration by Gorsky, Usprich and Brandt. At page 3-3, the authors write:

In Scarborough P.U.C., the union challenged the right of the employer to establish a new set of rules and regulations. Since the rules had not been implemented and no employee's status had been affected by their operation, the employer argued that the union had to wait for a specific incident involving the application of the rules and the imposition of discipline thereunder, before a grievance could be filed. The board unanimously held that the grievance was not premature.

In the above-noted case, reported as (1974), 5 L.A.C. (2d) 285 (Rayner), the board found that the union could properly bring the grievances forward as policy grievances. Although, in the instant case, there is no question of a policy grievance, the issue is similar. The employer posted a revised shift cycle schedule some fifteen days before the schedule was to commence, as required by a provision of the collective agreement. While it is true that no employee had yet worked any of the shift cycles set out in that schedule, the employer did take the action of posting it - as it was bound to do. It is not dissimilar to a situation where an employer might post a vacation leave schedule. If an employee is unhappy with the schedule, it would be of little value to the employee to have to wait until the date(s) in question actually arrived and lapsed. By then, corrective action would be impossible. The posting of the vacation schedule or a shift schedule, as in the instant case, constitutes a real, concrete action. The employees are immediately aware that these are the shifts that they will have to work. It is not, I suggest, hypothetical. The employer was required to post it fifteen days in advance. The mere fact that the shift cycle schedule may have been subject to further modifications resulting from unforeseen circumstances or emergencies such as illness, death, etc. does not render it hypothetical.

…

35 Following the rationale referenced in Nicholson, there was nothing hypothetical, premature or prospective once the employer issued the July 5, 2005, email. All three employees to whom it was addressed knew then that they were concretely affected. As such, they were aggrieved within the meaning of subsection 215(1) of the Act.

C. Employer’s rebuttal

36 Reacting to the bargaining agent’s final point, the employer argued that at best, only the three employees who received the July 5, 2005, email could possibly have shared the common element of having been aggrieved under subsection 215(1) of the Act. That provision requires that the grievance must be shared in common by all of the consenting employees, which was not the case.

37 In response to a question of clarification that I posed, the employer stated its position that because the wording of subsection 215(1) of the Act does not contemplate that the issue only need be common in respect of some of the employees, all of the employees must be aggrieved for there to be a valid group grievance.

IV. Procedural determination

38 After hearing oral arguments, I ruled that I would issue a separate written decision on the objection to jurisdiction following the hearing. I directed the parties to use the remaining hearing time available to present evidence on the merits on a contingent basis.

39 I also requested written submissions from the parties on the issue raised in rebuttal by the employer concerning the status of a group grievance in a scenario where some, but not all, of the participating employees may be found to have been “aggrieved” within the meaning of subsection 215(1) of the Act. Specifically, I asked the parties to respond to the following two questions:

Should the adjudicator find that some, but not all, of the grievors were aggrieved within the meaning of subsection 215(1) of the Act, what are the consequences for his jurisdiction to hear the merits of the group grievance? Further in that regard, if the adjudicator finds that certain employees were not aggrieved, may he remove their names from the list of grievors participating in the group grievance and proceed to hear the merits of the case with respect to the remaining grievors?

V. Supplementary written arguments

A. On behalf of the employer

40 The employer submitted the following written arguments on March 20, 2008, on the first of the two questions that I posed about the status of the group grievance:

…

A group grievance consists of one single grievance, rather than a grouping of several individual grievances. It is a substantive right attributed to the bargaining agent (for the benefit of consenting employees), rather than a procedural remedy. The right to file a group grievance emanates directly from the Act, rather than the Regulations, from which most procedural provisions emanate.

As a grouping of individual grievances, the group grievance is a unique, distinct and indivisible grievance.

One of the fundamental differences between a group of individual grievances raising similar issues and a “group grievance” is that while the possibility exists for consolidating a group of individual grievances (see s.98 of the Regulations), the severance of a “group grievance” into smaller distinct groups (i.e. those who meet the definition of a group grievance and those who do not) does not appear to be an option, at least not under the relevant Act or its Regulations.

With regards to this very issue, the legislator has expressly provided as to how an employee may join a group grievance (see ss. 215(2) of the Act), as well as to how an employee may remove himself or herself from the group grievance (see s. 218 of the Act). It is a statutory right conferred expressly to the individual employee, rather than a procedural remedy or solution available to the Board or to an adjudicator. Once an employee consents to joining a group grievance, he or she cannot be excluded from the group unless the employee exercises his or her right to withdraw from the group. In both cases, the decision rests with the employee.

As there is only one grievance over which the adjudicator can have jurisdiction, the adjudicator cannot be partly competent to hear this single grievance. For the adjudicator to have jurisdiction over the matter in question, the grievance must satisfy the main criteria set out in ss. 215(1) of the Act, namely that the “commonality” is with respect to “those employees” who have consented to joining the group grievance. The wording used by the legislator in ss. 215(1) and in s. 218 leaves little room for alternative interpretations. Section 215 does not refer to “some or all of the employees”, as this would run contrary to the objective of the provision in question, which is the commonality of the targeted group.

If one or some of the employees do not share this common element, then there is no commonality and the choice of grievance mechanism is simply not the right one. In such circumstances, the bargaining agent should not seek the consent of employees who do not share the required common element. This does not mean that the affected group of employees does not have an efficient recourse to have their mutual grievances heard by the Board. Section 208 of the Act (individual grievances) and s. 98 of the Regulations (consolidation) clearly provide for such instances. Another option is also contemplated by s. 220 of the Act (policy grievance). The fact that the circumstances of this case do not lend themselves to the grievance mechanism chosen by the bargaining agent does not and will not prevent the affected employees from having their complaint addressed by this Board through another statutory mechanism.

It is submitted that if the criteria set out in s. 215(1) are not met by the bargaining agent, then the adjudicator does not have jurisdiction over the matter.

…

[Emphasis in the original]

41 Concerning the second question, the employer argued as follows:

…

The adjudicator should only exercise the powers conferred upon him or her by the Act and its Regulations. Those powers are specifically listed under s. 226(1) of the Act and do not provide for the severance or splitting of a group grievance. Additional powers are also provided for in the Regulations, such as the power to consolidate proceedings under s. 98, but no mention is made of a power to server [sic], split or exclude one or several consenting employees from a group grievance or from any proceeding for that matter.

It is submitted that if it is demonstrated that at least 13 of the 16 members forming the group of aggrieved employees do not share this commonality and can not be found to have been aggrieved when the group grievance was filed, which is believed to be the case, then this group grievance can not be adjudicated and the adjudicator has no jurisdiction over the matter.

It is also submitted that the adjudicator is not empowered to exclude or remove the names of employees that were not aggrieved as a means of rectifying a substantive flaw, that is to say the failure to meet a statutory requirement. Neither the Act or the Regulations, provide for such procedural solution.

Given the language used by the legislator, the grievance options available to the employees and the absence of a legislative power to sever, split or exclude members of the group, it is submitted that a group grievance is one indivisible grievance. The only means by which a grievor can be removed is by the grievor’s withdrawal from the grievance.

Further, by severing the group and removing some of the employees that voluntarily opted in, an adjudicator would in effect revert back to running nothing short of a “test case”, something that would in essence defeat the true purpose of a group grievance and could easily be accomplished through s. 208 of the Act and s. 98 of the Regulations (for the remaining 3 employees). It is submitted that such an approach could only takesus back rather than take us forward.

…

[Sic throughout]

B. On behalf of the bargaining agent

42 The bargaining agent’s submissions, dated April 4, 2008, read as follows:

…

Group Grievances

4. Group grievances are distinct from individual and policy grievances.  It has been recognized by arbitrators that group grievances apply to situations in which a number of individual grievances are brought forward as a single complaint.  That is, “two or more employees claim similar relief for the same alleged breach of the collective agreement.” It is well accepted that a group grievance is simply a collection of individual grievances.

• See ReRobson-Lang Leathers Ltd. and Canadian Food & Allied Workers, Local 205L (1973), 2 L.A.C. (2d) 289 (O'Shea) at paragraphs 9 to 11, for a discussion of the difference between individual, group, policy and union grievances generally.  [Tab 2]

• Brown & Beatty, Canadian Labour Arbitration, 3^rd ed. at 2:3126 [Tab 3]

5. Significantly, arbitral jurisprudence does not appear to point to any requirement that every individual grievor included in a group grievance present with identical facts or claim identical relief.  Rather, as put by Brown and Beatty in Canadian Labour Arbitration, there are a myriad of circumstances in which it is in the interests of one or both parties that “a number of grievances be lumped together and dealt with in one arbitration,” usually through a group grievance procedure, such as an interest for expediency, efficiency and the avoidance of a multiplicity of proceedings.

• Brown & Beatty, Canadian Labour Arbitration, 3^rd ed. at 3:1300 [Tab 3]

Jurisdiction and the Right to Grieve under the PSLRA

6. A group grievance is merely a collection of individual grievances which raise similar issues. As such, it is entirely within the realm of possibility that in some cases, not all of the grievors will be found to have been aggrieved. The Bargaining Agent submits that this has no bearing on an adjudicator’s jurisdiction to hear the merits of the group grievance.

7. While the PSLRB has yet had to decide on this particular issue, group grievances being a new type of grievance under the PSLRA, the concept of group grievances is well founded in arbitral jurisprudence. “Whether each employee’s claim should be dealt with concurrently or separately does not raise a question of arbitrability. Rather, in such circumstances the arbitrator must endeavour to follow a procedure which will give effect to each individual’s rights while at the same time avoiding a multiplicity of proceedings.”

• Brown & Beatty, Canadian Labour Arbitration, 3^rd ed. at 2:3126 [Tab 3]

8. The right to grieve, be it through the means of an individual, group or policy grievance, is an essential element of the labour relations regime set out in the PSLRA. In the context of group grievances, Parliament has provided that this right can be taken away only under certain specific situations, such as: where a redress process is already provided for under any Act of Parliament, other than the Canadian Human Rights Act; where the grievance involves “the right to equal pay for work of equal value”; and where the grievance is related to action taken under instruction, direction or regulation given by or made by the Government of Canada in the interest of the safety or security of Canada.

9. The former PSSRB has recognized that the right to grieve is fundamental, hence the requirement that any limitations on that right ought to be found in the Act itself. Indeed, in Melnichouk v. Canadian Food Inspection Agency, the Board held that “given the central importance of the statutory right to grieve in the federal public service labour relations regime, any removal of that right should be done explicitly.”

• 2004 PSSRB 181 at paragraph 47 [Tab 4]

10. This interpretation also conforms to the principle enunciated by the Supreme Court of Canada that legislation should not be interpreted in a way that restricts existing statutory rights unless there is a clear legislative intent to accomplish that result.  The courts must look for express language in the legislation before concluding that rights have been reduced.

Morguard Properties Limited v. City of Winnipeg (1983), 3 D.L.R. (4th) 1 [Tab 5]

11. In the same vein, section 12 of the Interpretation Act states that every enactment “is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

• R.S., 1985, c. I-21 [Tab 6]

12. Had Parliament intended to take away an adjudicator’s jurisdiction where the individual grievors did not present with identical, rather than similar claims, it would have been simple to say so in the legislation. The fact is that Parliament simply has not done so.

Severability of Group Grievances

13. The very nature of group grievances, being simply a collection of individual grievances, ought to lead this Board to conclude that they are severable.

14. In Leduc et al. v. House of Commons, 2006 PSLRB 92 [Tab 7 of the Bargaining Agent’s Book of Authorities], approximately thirty-nine grievances were filed concerning shift scheduling, hours of work and the interpretation of the collective agreement between the parties. The parties agreed that one employee’s grievance would be a test case, to be treated as part of a group grievance, and that the decision would apply to all members of the bargaining unit. While a settlement was ultimately reached before the scheduled hearing date, the Board had been willing to proceed on this basis.

15. As such, while the issue of severability of group grievances has not yet been directly considered by the Board, it is implicit in the Leduc decision that the Board has the jurisdiction to hear and decide on only a part of a group grievance.

16. Section 218 of the PSLRA provides that an individual employee may withdraw from the presentation of a group grievance by notifying the bargaining agent. This may be done at any time before a final decision. Contrary to the Employer’s submissions, the ease with which an employee may withdraw from a group grievance, that is, simply by notifying the bargaining agent at any time before a final decision is made in respect of the grievance, lends support to the concept of the severability of group grievances. An employee may withdraw from a group grievance, at any time before a final decision, and his or her decision to do so would have no bearing on the remaining members of the group, insofar as the grievance procedure is concerned.

17. A further issue may also be considered. In the arbitral context, where several grievances are combined involving employees whose interests are not identical, or may even be in conflict, the union is not required to select which of the several grievances to proceed with.

18. An example of this is the Ontario Labour Arbitration decision of Reynolds Aluminum Co. of Canada. Five employees of varying seniority had applied to a vacant position posted by the employer. The employer rejected all the applications and hired a new employee to fill the position. Two of the five applicants grieved against the employer’s action, which grievances ultimately proceeded to arbitration. Because the combined grievances involved employees whose interests were in clear conflict, being two applicants to the same job vacancy, the employer raised a preliminary objection that the union was bound to elect which of the grievances would proceed before the Board. The Board dismissed the objection on the following grounds:

Quite clearly, as the arbitrator in Labatt's pointed out, were separate arbitration hearings required for each grievance, the disputes could not, as they ought, be determined expeditiously and with minimum expense. Moreover, as he said, only if the arbitrator entertains at one hearing all the grievances claiming the particular vacancy can the arbitrator properly focus his attention on the exact problem facing the employer when it assessed the competitors and made the choice. Therefore, apart from any other consideration, in the absence of some provision in the collective agreement denying the arbitrator's authority to entertain more than one grievance under the present circumstances, we believe the arbitrator should entertain them all.

• (1973), 4 L.A.C. (2d) 370 (Schiff) at paragraph 4 [Tab 8]

19. The IBEW respectfully submits that the same reasoning ought to be applied to the case at hand. In the absence of a legislative provision denying the adjudicator’s authority to hear and rule on the group grievance under the present circumstances, we believe the adjudicator should find not only that he has jurisdiction, but that he should continue to hear the individual grievances together, as a group, so that he may properly focus his attention on the actions taken by the employer when it instituted shift changes in violation of the Collective Agreement.

…

C. Employer’s rebuttal

43 The employer’s rebuttal arguments, dated April 17, 2008, read as follows:

…

1. In response to paragraphs 5, 7 and 18 of the bargaining agent’s submissions, nothing prevents the Board from “lumping together” a number of individual grievances and to deal with them in the context of a single adjudication. That is expressly contemplated by s. 98 of the Regulations. A group of several individual grievances can be consolidated and heard at a single adjudication.

2. In response to paragraphs 8 to 12 of the bargaining agent’s submissions, it should be noted that the right to grieve is not being jeopardized in these circumstances. It is simply the appropriateness of the chosen type of grievance that is being debated. Other effective grievance alternatives are available to the employees, including individual grievances, which can be consolidated for administrative purposes, and policy grievances. In fact, several individual grievances were filed by the concerned employees with respect to the same issue, all of which are currently being held in abeyance.

3. Contrary to what is alleged in paragraph 10 and 11 of the bargaining agent’s submissions, no rights are being reduced, restricted or deprived by ensuring that the bargaining agent meets the criteria set out in s. 215. Rather, the real issue is which of the three grievance mechanisms, i.e., individual, group or policy (and possibly four isyou consider the consolidation option), is available and appropriate in the circumstances. The fact that the chosen grievance mechanism is inappropriate because the vast majority of the employees who signed the group grievance were not aggrieved does not restrict the employees’ rights, as there are three other grievance mechanisms at their disposal.

4. Contrary to what is being suggested in paragraph 12 of the bargaining agent’s submissions, the issue is not whether or not the grievors’ claims are identical or similar. For consolidation purposes, a group of them may very well meet that threshold. Rather, the issue is whether each listed employee does in fact share the common element of having a claim in the first place. Failure to meet the chosen provision’s pre-condition, i.e. to feel aggrieved, can not and should not give rise to a claim.

5. In response to paragraph 19 of the bargaining agent’s submissions, an adjudicator’s jurisdiction is not derived from what is not excluded in the Act. To the contrary, an adjudicator’s jurisdiction stems solely from what the legislator expressly provides for, i.e., s. 226 of the PSLRB.If the opposite were true, the list of what an adjudicator may not hear or rule on would have to be both long and exhaustive.

6. The bargaining agent, in its submission, repeatedly suggested that a group grievance is nothing but a collection of individual grievances. The employer respectfully disagrees. The PSLRA specifically distinguishes between the right that employees have to present an individual grievance (s. 208) from the right that bargaining agents have to present group grievances “on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or arbitral award” (s. 215).

7. The circumstances where either type of grievance can be filed vary significantly, so do the party or entity that can file a grievance (individual employee vs. bargaining agent). It would be unreasonable to conclude that the legislator intended the group grievance provision to be nothing more than a bundle of individual grievances, especially when the legislation already provides for the consolidation of individual grievances (s. 98 of Regs.).

8. In response to paragraph 14 of the bargaining agent’s submissions, it is submitted that the fact that the parties in the Leduc case may have agreed to only argue one of 39 grievances and to apply the decision of a test case to all the members of the bargaining unit is not an indication that the Board is legally empowered to assume jurisdiction over an ill-constituted group grievance, with or without the parties’ consent.

9. As previously determined by this Board, the parties can not, through mutual consent, provide jurisdiction to the Board (see Fok and Granger, 2006 PSLRB 93, par.12).

10. It should also be noted that in the Leduc case, the Board did not rule on the jurisdictional issue that concerns us now but rather dealt with the binding effect of the settlement the parties had reached.

11. A close reading of the Robson-Lang decision (at Tab 2 of the bargaining agent’s authorities) and of the Brown and Beattie exceptfound at Tab 3 suggests that the use of the term “group grievance” in those authorities was more akin to a consolidation of individual grievances (something that is available under the Act). It appears to have little to do with the procedure contemplated by s. 215 of the Act, a distinct right afforded to the bargaining agent in prescribed circumstances.

…

[Emphasis in the original]

[Sic throughout]

VI. Reasons

44 The employer contends that the bargaining agent filed the group grievance prematurely. According to the employer, no employees were aggrieved within the meaning of subsection 215(1) of the Act as of July 8, 2005, the date of the group grievance, thus leaving me without authority to proceed.

45 In its rebuttal submission, the employer supplemented its objection with the argument that the group grievance did not qualify as such for purposes of subsection 215(1) of the Act because the matter grieved was not common to all of the employees on whose behalf the bargaining agent filed its action.

46 These reasons address both jurisdictional questions in turn.

A. Prematurity

47 The precise wording of the group grievance is important in evaluating the employer’s claim that the bargaining agent filed the grievance prematurely. As noted at the beginning of this decision, the group grievance reads as follows:

Being instructed to work evening and night shifts for sea trials in violation of article 32 of the EL Group collective agreement.

48 The wording of the grievance appears to be straightforward. Through that wording, the bargaining agent has identified “[b]eing instructed to work evening and night shifts for sea trials” as the event that triggered the grievance. That instruction, according to the statement of grievance, violated article 32 of the collective agreement.

49 The corrective action specified by the bargaining agent reinforces the focus on the employer’s instruction to work certain shifts. It asks that the employer withdraw its instruction to employees “… to work shifts for sea trials … .”

50 The facts in evidence are not in dispute. An employer representative sent an email to three employees on July 5, 2005, that stated, “… [y]our regular hours of work have been shifted to commence at 15:00 Monday the 11th at the NESTRP range …” (Exhibit E-1). Mr. Hix testified that the three employees reported for sea trials duty on July 11, 2005, as directed, although one of them started work that day at 07:00. In the interim (on July 8, 2005), the bargaining agent filed a group grievance signed by 16 employees, including the 3 to whom the employer addressed the email.

51 The employer’s argument that the group grievance was premature depends on the proposition that no employee was “aggrieved” until he or she actually had to report for shifted hours of work on July 11, 2005. I respectfully disagree, at least in part. Had the grievance, for example, specifically attacked the actual work requirement on July 11, 2008, or perhaps the compensation that the employer subsequently paid for that work requirement, then the employer’s objection might be viewed in a different light. However, the wording of the grievance does not focus on those elements. Instead, the statement of grievance anchored the fact of being aggrieved to the employer’s instructions of July 5, 2008. As in Nicholson, I do not believe that it was necessary for the employees to wait until July 11, 2005, for their grievance to crystallize. The employer’s instructions of July 5, 2005, were not merely hypothetical or simply prospective. Through its email, the employer issued an interpretation of the collective agreement to the effect that it had the authority to shift hours of work for the purpose of sea trials and that it was exercising that authority. Even the grammar of the instruction tends to support that perspective. The email stated to its recipients that “… your regular hours have been shifted …” and not that they may or could be shifted.

52 In the circumstances of this case, the group grievance might arguably have become moot as in Fok had there been no follow-through of the employer’s instructions on July 11, 2005. That does not mean, however, that there was no dispute starting July 5, 2005. I accept the bargaining agent’s argument that the instructions created a live issue of collective agreement interpretation as of that date. Using the terminology of subsection 215(1) of the Act,the recipients of the email could concretely “… feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement …” announced by the employer. At least hypothetically, the employer, having been alerted to the bargaining agent’s concern on July 8, 2005, could have rescinded its instructions before the actual work requirement took place on July 11, 2005, thus resolving the dispute. In that sense, the employer’s email of July 5, 2005, is generally analogous to the employer’s advance posting of a shift schedule in Nicholson, an action found by the adjudicator to have been sufficiently real and concrete as to provide the basis for a receivable grievance that could subsequently be referred to adjudication.

53 There is a caveat. The email instructions of July 5, 2005, crystallized the grievance in the case of the three employees who became subject to the collective agreement interpretation issued by the employer on that date. There was, however, no direct evidence presented to establish what crystallized the grievance in the case of the other 13 employees who signified their consent to the presentation of the group grievance. Clearly, the email was not addressed to them. It does seem probable that Mr. Hix intended that the collective agreement interpretation reflected in the email could or would apply in the future more widely to other employees. He testified that “the OT directive” referenced in the email was the document entitled “Combat Systems Overtime and Associated Premium Management”, dating to May 2005 (Exhibit E-2). That document does mention the possibility of “… a temporary change of work schedule …” in connection with the conduct of sea trials by employees in the combat systems engineering section. However, the bargaining agent did not argue that the “OT directive” crystallized the grievance for the other 13 employees or, for that matter, for the three employees who later received the email of July 5, 2005. There was, moreover, no evidence offered by the bargaining agent that the other employees received the “OT directive,” or otherwise came to know about it, or that they understood that it expressed a collective agreement interpretation that caused them to feel aggrieved.

54 Without some direct evidence that would persuade me, then, how the email of July 5, 2001, also crystallized the grievance for the other 13 employees, I must conclude that, for them, the grievance was premature. To that extent, the employer’s objection to jurisdiction has merit regarding the grievance signatories other than Messrs. Skrobotz, Buckley and Vinden.

B. Defect in group grievance

55 The entitlement of a bargaining agent to file a group grievance and, as necessary, to refer that grievance to adjudication is a notable new feature of the Act that came into effect on April 1, 2005. Sections 215 and 216 are the operative provisions:

      215. (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

      (2) In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned in the form provided for by the regulations. The consent of an employee is valid only in respect of the particular group grievance for which it is obtained.

      (3) The group grievance must relate to employees in a single portion of the federal public administration.

      (4) A bargaining agent may not present a group grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

      (5) Despite subsection (4), a bargaining agent may not present a group grievance in respect of the right to equal pay for work of equal value.

      (6) If an employee has, in respect of any matter, availed himself or herself of a complaint procedure established by a policy of the employer, the bargaining agent may not include that employee as one on whose behalf it presents a group grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from participating in a group grievance under this Act.

      (7) A bargaining agent may not present a group grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

      (8) For the purposes of subsection (7), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada

      216. The bargaining agent may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.

56 To date, I believe that only one decision on a group grievance has been rendered by an adjudicator under section 216 of the Act: Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 120. While that decision also involved jurisdictional issues, neither jurisdictional question raised by the employer required the adjudicator to consider how the legislator intended the new group grievance mechanism to operate.

57 The employer’s second objection in this case obviously addresses the operation of the group grievance mechanism. The employer contends that the wording of subsection 215(1) of the Act requires that every employee who has consented to the presentation of a group grievance by the bargaining agent must “feel aggrieved” in common by the alleged misinterpretation or misapplication of a provision of the collective agreement or arbitral award. Should it be determined that not all consenting “grievors” share that commonality, “… the choice of grievance mechanism is simply not the right one …” and the adjudicator is deprived of jurisdiction to consider the group grievance.

58 If the employer is correct in its interpretation of subsection 215(1) of the Act, the group grievance before me is fatally defective given my finding that, for 13 of the 16 employees who consented to the group grievance, the grievance was premature; that is to say, they could not “feel aggrieved.” Following the employer’s argument, I am thus prohibited under the Act from accepting jurisdiction over the grievance and from considering the merits of the case for the remaining three employees.

59 More generally, if I accept the employer’s interpretation of subsection 215(1) of the Act and sustain its jurisdictional objection, that precedent would suggest that any group grievance may be found to lie outside an adjudicator’s jurisdiction if the adjudicator determines that one or more of the consenting employees does not share the common grounds for feeling aggrieved. Put in perhaps more dramatic terms, where there is a successful challenge to the status of even one of the employees who has consented to a group grievance, the standing of all of the other employees consenting to that grievance is moot, and an adjudicator must reject the group grievance on jurisdictional grounds. According to the employer, the adjudicator simply has no authority under the Act to “sever” the grievance; i.e., to remove the names of those employees who are found not to have felt properly aggrieved within the meaning of subsection 215(1) and to consider the merits of the grievance for the remaining consenting employees, however numerous:

…

For the adjudicator to have jurisdiction over the matter in question, the grievance must satisfy the main criteria set out in ss. 215(1) of the Act, namely that the “commonality” is with respect to “those employees” who have consented to joining the group grievance. The wording used by the legislator in ss. 215(1) and in s. 218 leaves little room for alternative interpretations. Section 215 does not refer to “some or all of the employees”, as this would run contrary to the objective of the provision in question, which is the commonality of the targeted group.

If one or some of the employees do not share this common element, then there is no commonality and the choice of grievance mechanism is simply not the right one.

…

60 In addressing the employer’s objection, I turn first to history. Under the legislation in place before April 1, 2005 (Public Service Staff Relations Act, R.S.C., 1985, c. P-35, “the PSSRA”), no group grievance mechanism was available. Where two or more employees felt commonly aggrieved by the employer’s interpretation or application of a provision of a collective agreement or arbitral award, the PSSRA required that each employee separately submit a grievance and, as necessary, refer those grievances separately to adjudication. In principle at least, the legislation obliged the employer to process each grievance individually. Equally, each grievor in principle enjoyed the entitlement to have his or her grievance heard and decided individually by an adjudicator under the PSSRA.

61 As a result, the Public Service Staff Relations Board frequently encountered situations where employees, or bargaining agents acting on their behalf, referred to adjudication a number of separate but identically worded grievances — occasionally in the dozens or even the hundreds — either one by one or in batches. Faced with the arriving references to adjudication, the Board’s practice, based on the technical requirements of the PSSRA, was to open a separate file and follow its usual notification and file management procedures separately for each grievance.

62 Over the years, some employers and bargaining agents expressed the view that the lack of a group grievance option under the PSSRA contributed to substantial administrative inefficiency in processing grievance files. To a certain extent, they found practical ways to address some aspects of the situation. Not uncommonly, the parties agreed to proceed through the internal grievance procedure with a test case while holding other identical grievances in abeyance. At the Board, similar results were achieved by informally adopting a similar “test case” approach or by grouping grievances in the hearing schedule. While such approaches were helpful, critics of the situation argued that any new or revised legislation should incorporate a thoroughgoing group grievance mechanism, as exists in some other jurisdictions, to achieve greater efficiency and to obviate the need for “band-aid” procedural solutions.

63 Sections 215 and 216 of the Act appear to be a direct response to that identified need.

64 Relative to the previous regime under the PSSRA, sections 215 and 216 of the Act do not expand the subject matter that may be grieved and referred to adjudication. In that important sense, neither section 215 nor 216 creates a substantive right that did not previously exist. Instead, they offer a new procedural option for the presentation, processing and adjudication of a grievance that commonly affects two or more employees. That option is not available for all classes of grievances under the Act, but only for those situations where the employer’s interpretation or application of a provision of the collective agreement or arbitral award is at issue. Carriage of such a grievance is given to the bargaining agent, with the procedural caveat that it may present the grievance only on behalf of those employees who have explicitly consented to participate in the fashion stipulated by subsection 215(2). Employees enjoy the further right to withdraw their consent at a later time under section 218:

      218. An employee in respect of whom a group grievance has been presented may, at any time before a final decision is made in respect of the grievance, notify the bargaining agent that the employee no longer wishes to be involved in the group grievance.

65 In my view, the inclusion of the new group grievance option in the Act was an expression of, and fully consistent with, the legislator’s stated intent to provide for the “… fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment [emphasis added]” (preamble to the Act). By providing an explicit group grievance mechanism, the Act made it possible for groups of commonly aggrieved employees, through their certified bargaining agent, to avoid unnecessary duplication in the presentation of grievances and to benefit from a more efficient process for processing and resolving those grievances. For the Board, the potential for achieving greater efficiency through the group grievance mechanism lies in the opportunity to open and manage only one reference-to-adjudication file for a case involving multiple employees and to resolve that dispute directly through a single adjudication proceeding.

66 In light of that background, is the employer properly interpreting the Act, viewed against the intentions of the legislator, when it argues that I lack jurisdiction to consider this reference to adjudication because the bargaining agent failed to present a sound group grievance in accordance with section 215, given that some of the employees who consented to the grievance were not commonly aggrieved within the meaning of the Act? For the reasons that follow, I must answer in the negative.

67 I accept the bargaining agent’s submission that an adjudicator must give the group grievance provisions of the Act “… such fair, large and liberal construction and interpretation as best ensures the attainment of [the legislation’s] objects”: section 12, Interpretation Act. As noted above, “efficiency” is one of the objects of the legislation that must be considered. Part of my task, at least, is to interpret and apply sections 215 and 216 of the Act in a manner that is consistent with the objective of ensuring efficiency in the resolution of disputes. Giving those provisions an unnecessarily narrow technical interpretation, by contrast, risks undermining their purpose and usefulness.

68 The wording of subsection 215(1) of the Act lies at the heart of the employer’s objection to my jurisdiction. The effect of the employer’s argument is that an adjudicator may only take jurisdiction to consider a group grievance under subsection 215(1) if all employees consenting to the group grievance share the common basis for being aggrieved:

       215. (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

(in French)

       215. (1) L’agent négociateur d’une unité de négociation peut présenter un grief collectif à l’employeur au nom des fonctionnaires de cette unité qui s’estiment lésés par la même interprétation ou application à leur égard de toute disposition d’une convention collective ou d’une décision arbitrale.

69 With respect, I believe that the employer’s argument gives subsection 215(1) of the Act a narrower interpretation than can be supported by its plain wording in either language. The employer’s argument also, in my view, seeks an outcome that is inconsistent with the objective of promoting efficiency in the resolution of disputes.

70 Subsection 215(1) of the Act contemplates first that the employees involved in a group grievance must “… feel aggrieved … [emphasis added]” by the employer’s interpretation or application of a provision of a collective agreement or arbitral award. As with any grievance, the state of “feeling aggrieved” is a subjective rather than objective criterion. The evidence that an employee feels aggrieved in the context of a group grievance is that he or she has consented to the presentation of that group grievance by the bargaining agent in the manner prescribed by subsection 215(2). An employee may be objectively wrong in feeling aggrieved, but that is a matter for determination on the merits and not a question of jurisdiction.

71 Second, under subsection 215(1) of the Act, the collective agreement or arbitral award interpretation or application that causes consenting employees to feel aggrieved is one that is “… common in respect of those employees … .” To accept jurisdiction over the group grievance, an adjudicator, in my view, need only be satisfied that there is a prima facie (meaning “at first sight”) basis for the allegation that the challenged interpretation or application of the collective agreement or arbitral award commonly affects or could commonly affect those employees who have signified that they feel aggrieved. The required prima facie determination may in some cases be based on the details stated in the grievance itself. In other cases, some further preliminary evidence may be needed. The evidentiary threshold, however, is not high. An adjudicator cannot, in effect, require the bargaining agent to prove the merits of its case — e.g., to conclusively establish commonality — as a precondition to assuming jurisdiction. Taking jurisdiction to consider the group grievance requires only that the adjudicator find that there is an arguable case, sufficient on its face, that the alleged commonality exists or may exist. The conclusive finding on the point will be made when the adjudicator subsequently considers the merits of the case, where the standard of proof is “on a balance of probabilities.”

72 The employer seems to imply in its submissions that the legislation places the onus on the bargaining agent to be certain that all consenting employees share common grounds for being aggrieved when it files a group grievance under subsection 215(1) of the Act. The employer submits that “… the bargaining agent should not seek the consent of employees who do not share the required common element.” Otherwise, in the employer’s submission, the bargaining agent will face the risk of having its group grievance declared to be outside an adjudicator’s jurisdiction if it is subsequently shown that one or more of the consenting employees were not in reality aggrieved. While it is fair comment to suggest that a bargaining agent should not knowingly involve employees in a group grievance who do not share the common basis for feeling aggrieved, requiring that a bargaining agent be certain about that commonality at the risk of an adverse jurisdictional finding goes too far.

73 It may be, for example, that there are facts unknown, or reasonably unknowable, by the bargaining agent at the time of filing a group grievance that bear upon the status of one or more of the employees consenting to its presentation. Conceivably, such facts may later prompt a bargaining agent to counsel an employee to withdraw from the group grievance under section 218 of the Act. Nothing in that section, however, allows the bargaining agent to force an employee to do so. The logic of the employer’s argument applied to that scenario would nonetheless require an adjudicator to refuse to accept jurisdiction to consider the group grievance, to the cost of the bargaining agent and all other consenting employees, when neither the bargaining agent nor those other employees have definitive control over the names on the group grievance list. As long as one consenting employee is subsequently shown not to share the common grounds for being aggrieved, the group grievance may not proceed.

74 Were that proposition well-founded, which I do not accept, it is only reasonable to expect that bargaining agents would react pragmatically to what would be viewed as a very restrictive construction of section 215(1) of the Act. Either they would endeavour to protect their standing to have the grieved issue heard by filing parallel individual grievances for all consenting employees at the same time as filing a group grievance (as a safety “backup”), or they might decide to avoid all risk of an adverse jurisdictional finding by not using the group grievance option at all. Either result, in my opinion, would undermine the legislator’s objective of ensuring greater efficiency in the resolution of disputes by including a group grievance option in the first place.

75 I note the employer’s observation that subsection 215(1) of the Act should not be interpreted as if it were worded that the grieved interpretation or application of a provision of a collective agreement or arbitral award is one that is “… common in respect of some or all of those employees [emphasis added].” I believe, in contradistinction, that it would be inappropriate to insist on an approach, as the employer does, that effectively interprets the subsection as reading “… by the interpretation or application, that is demonstrated to be common in respect of all of those employees, of a provision of a collective agreement or an arbitral award [emphasis added].” From my perspective, any grievance comprises an allegation or statement of claim. The presenter of the grievance should always advance that allegation or claim in good faith and in the belief that it is accurate. There is nonetheless a degree of uncertainty inherent to the enterprise. Finding that some part of the allegation or claim is factually wrong — in the specific circumstances here, that the grievance is only common in respect of “some of those employees” — is not a fundamental jurisdictional flaw. It is not, in my view, a matter that must be determined as a precondition to allowing the dispute resolution procedure to operate as intended. Rather, it is a normal and plausible outcome of the testing process that lies at the heart of considering the merits of the case.

76 I am not in total disagreement with the employer’s submissions. On reflection, I am persuaded that the employer is probably on solid ground when it contends that an adjudicator does not have the explicit authority to sever or split a group grievance or, technically, to remove names from that grievance if he or she finds that some employees do not share the alleged commonality. In that respect, I concur that a group grievance is a single, unique action, different from an aggregation of identical individual grievances in certain important respects. The fact that it is a single, unique action, however, does not preclude an adjudicator from making findings about, and ordering remedies for, that grievance that distinguish between different component elements of the case and/or between different employees involved in the case. In my view, an adjudicator’s authority to make findings of jurisdiction and of fact, to draw conclusions from the evidence and to order remedies is no narrower for a group grievance than it is for any other type of grievance. I do not read the Act as restricting the adjudicator only to rule on a group grievance indivisibly, for all consenting employees. Subsection 228(2) of the Act states that “[a]fter considering the grievance, the adjudicator must render a decision and make the order that he or she considers appropriate in the circumstances.” If, for example, the evidence establishes on a balance of probabilities that some but not all of the employees consenting to a group grievance were in fact aggrieved by an action or decision of the employer, or that the employer breached the collective agreement or arbitral award in the case of some but not all of those employees, I believe that it is within the authority of the adjudicator to make a finding to that effect and construct “… the order that he or she considers appropriate in the circumstances.”

77 Perhaps the most curious element of the employer’s submissions is found in the following paragraph:

It is submitted that if it is demonstrated that at least 13 of the 16 members forming the group of aggrieved employees do not share this commonality and can not be found to have been aggrieved when the group grievance was filed, which is believed to be the case, then this group grievance can not be adjudicated and the adjudicator has no jurisdiction over the matter.

78 On its face, that submission appears to contradict the employer’s main argument that the adjudicability of a group grievance depends on every consenting employee sharing the common grounds for feeling aggrieved. Instead, the paragraph has the flavour of majoritarianism about it. Seemingly because “… at least 13 of the 16 members forming the group of aggrieved employees do not share [the] commonality … ,” the employer concludes that the grievance cannot be adjudicated.

79 Extending the employer’s proposition to its extreme, might an adjudicator’s decision to accept jurisdiction over a group grievance depend on a finding, for example, that 50 percent plus one of the consenting employees share the commonality? Surely not. Nothing in sections 215 and 216 of the Act points in that direction nor, in my judgment, to any other numerical rule or criterion that binds an adjudicator’s evaluation of his or her jurisdiction.

80 For the foregoing reasons, I cannot accept the employer’s interpretation of how the group grievance mechanism works where only some but not all of the employees who have consented to the grievance are found to have been commonly aggrieved. My interpretation of sections 215 and 216 of the Act leads me to the conclusion that an adjudicator has jurisdiction to consider the merits of a group grievance as long he or she is satisfied on a prima facie basis that there are employees among those employees who have consented to the presentation of the grievance who share or may share the alleged common grounds for feeling aggrieved. (As to the possibility of retaining jurisdiction where an adjudicator finds on a prima facie basis that only one consenting employee is or may be aggrieved, I take no position in the absence of specific submissions on the point.)

81 Given my interpretation of subsection 215(1) of the Act and the ruling that I have already made on the question of prematurity, I dismiss the second aspect of the employer’s jurisdictional objection in this case. There is, in my opinion, no jurisdictional bar to my proceeding to consider the merits of the case with respect to the three employees for whom the grievance is not premature. (There is, in effect, more than a prima facie case that those three employees share the common grounds for feeling aggrieved.) The fact that the grievance is premature in the case of the other 13 employees who consented to its presentation does not comprise a jurisdictional defect that prohibits me from proceeding to hear the merits of the case as regards Messrs. Skrobotz, Buckley and Vinden.

82 For all of the above reasons, I make the following order:

VII. Order

83 The employer’s objection to my jurisdiction to consider the group grievance on the grounds that it was premature is allowed in part in respect of the employees who consented to the presentation of the group grievance other than Messrs. Skrobotz, Buckley and Vinden.

84 The employer’s objection to my jurisdiction to consider the group grievance on the grounds that one or more of the participating employees do not share the common grounds for feeling aggrieved is dismissed.

85 The hearing on the merits of the group grievance will proceed within the scope defined by this order regarding jurisdiction.

May 22, 2008.

Dan Butler,
adjudicator