FPSLREB Decisions

I. Individual grievance referred to adjudication

1 At the time relevant to this grievance, Roger Lessard held the position of Safety Inspector, Dangerous Goods Standards, in the Commercial and Business Aviation Division of Transport Canada (“the employer”). On December 9, 2005, he filed a grievance contesting the employer’s refusal to pay him the terminable allowance provided in Appendix “P” of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Technical Services Group that was signed on March 14, 2005 (expiry date: June 21, 2007; “the collective agreement”).

II. Summary of the evidence

2 This grievance has to do with Appendix “P” of the collective agreement, the purpose of which is to solve employee retention problems in certain fields. The appendix provides for the payment of a terminable allowance to incumbents in certain positions in the Technical Inspection group who have a particular experience and training profile. The employee groups eligible for the allowance are defined as follows:

…

Employees in Transport Canada, Transport Safety Board, Public Works and Government Services Canada, and Fisheries and Oceans, Canadian Coast Guard who are incumbents at the TI-5 through TI-8 levels in the following positions and who possess the listed qualifications shall be entitled to Terminable Allowances as listed below.

-     Marine Inspectors, Surveyors, Investigators and DFO-CCG Vessel Support Group employees who have knowledge and extensive experience in the design, construction, operation or maintenance of vessels as demonstrated by possession of the appropriate
marine certificate of competency or university degree/diploma, combined with extensive experience in the field.

-     Air Investigators, Civil Aviation Safety Inspectors and Aircraft Inspectors who have extensive aircraft maintenance engineering experience and who possess a valid Aircraft Maintenance Engineer licence.

-     Civil Aviation Safety Inspectors holding a university degree, college certificate or a current membership in the American Society for Quality Control, with six (6) to ten (10) years of manufacturing process experience. Non-destructive specialist having ten (10) years in the field of non-destructive testing, preferably with an aircraft background and a C.G.S.B. certification covering Radiography (Aircraft Structures), Magnetic Particle, Liquid Penetrant and Eddy Current inspection are also employed.

-     Rail Investigators and Inspectors with qualifications in at least one of the following disciplines: locomotive engineer, conductor, brake person, track specialist, rail traffic controller/dispatcher, equipment/car/locomotive inspector, mechanical officer, signal maintainer and operations officer, and with extensive operational experience in the railway industry or CANAC/FRA certification.

…

3 For the purposes of this grievance, the relevant group is civil aviation safety inspectors who hold a university degree or college diploma and have manufacturing process experience.

4 In its responses to Mr. Lessard at the second and final levels of the grievance process, the employer indicated that Mr. Lessard’s position was not among those listed as eligible in Appendix “P.”

5 At the start of the hearing, the parties agreed on the following joint statement of facts:

[Translation]

1. Mr. Lessard occupies a position as a civil aviation safety inspector, dangerous goods, at Transport Canada.

2. This position is classified TI-06 in the Technical Inspection group.

3. Mr. Lessard has a certificate in business administration from the Université du Québec en Outaouais and a college diploma in medical laboratory technology from Algonquin College.

4. The employer refuses to pay the terminable allowance provided for in Appendix “P” of the collective agreement because, according to the employer, Mr. Lessard does not have manufacturing process experience within the meaning of Appendix “P.”

6 Mr. Lessard testified. He stated that, at the moment, he is on assignment at the Surface and Inter-Modal Security Directorate at Transport Canada but that at the time he filed his grievance he occupied a civil aviation safety inspector position in the Dangerous Goods Standards Section and had since 2000.

7 Mr. Lessard described his career path before Transport Canada hired him. He also specified that, of his work experience, in his opinion only his experience at Health Canada corresponded to manufacturing process experience. Therefore, I will limit the summary of the evidence to that specific experience.

8 Mr. Lessard worked at Health Canada at two different times: for 10 months in 1981, and again for 10 years, from 1987 to 1997. On both occasions, he worked in Health Canada’s culture mediums laboratory. In 1981, he occupied a position as a technologist. From 1987 to 1997, he occupied a laboratory head position.

9 Mr. Lessard explained that the laboratory’s principal mandate was to manufacture microbiology culture mediums, solutions and supplements at the request of and for the use of researchers and scientists working in Health Canada’s 17 research and reference laboratories. He added that manufacturing culture mediums, solutions and supplements consists of following recipes provided by clients in preparing, mixing and processing ingredients to obtain specific culture mediums, solutions and supplements. The process may involve a number of steps, handling and calculations. Manual techniques and other methods are used to carry out the various stages of the recipes and to process the various ingredients. Mr. Lessard stated that there were approximately 400 different standardized methods and procedures involving the use of over 600 different products. He stated that the complexity level of the recipes varied. Some recipes called for mixing, bottling and sterilizing various ingredients; others called for applying various techniques and using equipment involving some engineering. A third category of recipes called for manufacturing highly specialized and much more complex culture mediums that could require considerable handing and days of preparation.

10 Mr. Lessard stated that once the culture mediums, solutions and supplements were manufactured they were sent to the internal clients, who used them for various purposes, particularly for growing micro-organisms and creating specific toxins.

11 Mr. Lessard’s main duty as a technologist was to prepare the culture mediums by following the various recipes. As laboratory head, he was responsible for all the laboratory’s activities including preparing standardized procedures, implementing monitoring and quality programs, maintaining and calibrating equipment and instruments, training employees, etc.

12 Mr. Lessard acknowledged that he had no manufacturing process experience in the civil aviation field and that he had no experience in the aviation field before Transport Canada hired him.

13 Mr. Lessard joined Transport Canada in 2000 as a safety inspector in the Dangerous Goods Standards Section. His job description was adduced in evidence. It indicates the position title of Safety Inspector, Dangerous Goods Standards, in the Dangerous Goods Standards Section of the Commercial and Business Aviation Division. Mr. Lessard explained that the Division had 3 safety inspectors, dangerous goods standards, based in Ottawa and 22 regional safety inspectors. He stated that his role was primarily to provide operating instructions to the regional safety inspectors, to develop training programs, to issue notices, bulletins and other information to industry stakeholders and regional safety inspectors, and to respond to public inquiries about programs on public awareness of dangerous goods.

14 Mr. Lessard also explained that he held ministerial delegation H-16 for the exercise of powers and functions conferred by the Minister under the Aeronautics Act and the Canadian Aviation Regulations.

15 Mr. Lessard added that, in his opinion, his previous manufacturing process experience was relevant to his duties at Transport Canada because he applied the philosophy of, and the methods of proceeding and performing research into, processing and documenting information when drafting standards and operating instructions.

16 In testifying about his education, Mr. Lessard stated not only that he holds a university certificate and a college diploma but also that during a staffing process Transport Canada had recognized, for an indefinite period, his equivalence to having a university degree.

17 Testifying about the employer’s position in response to his request for the terminable allowance, Mr. Lessard stated that his request had been refused because the employer did not consider him to be a civil aviation safety inspector.

III. Summary of the arguments

A. For the grievor

18 Mr. Lessard’s representative maintained that Mr. Lessard satisfied all the eligibility criteria set out in Appendix “P” of the collective agreement to receive the terminable allowance and that the only criterion in dispute was Mr. Lessard’s manufacturing process experience. Mr. Lessard’s representative emphasized that the appendix could refer to manufacturing process experience without requiring that experience to be specific to a particular field. If the parties had intended manufacturing process experience to be specific to a particular field, they would have stated so.

19 Mr. Lessard’s representative stated that, for civil aviation safety inspectors, both the experience and the education requirements set out in the wording of Appendix “P” are general. On that note, he pointed out that the required diplomas had not been linked to a particular field and that, similarly, the general nature of the required experience formed part of the parties’ intention to establish general criteria. Mr. Lessard’s representative submitted that it would therefore be illogical to infer that manufacturing process experience must be specific to the field of aviation when, in that profile description, the parties did not specify a particular field of study.

20 Mr. Lessard’s representative also referred to other positions listed in Appendix “P” for which the parties had been much more specific about the education and experience criteria, specifying the field of study and the field of activity. If the parties had intended to be specific about civil aviation safety inspectors, they would have chosen more restrictive wording. On the contrary, Mr. Lessard’s representative maintained, the parties voluntarily set out a more general profile for civil aviation safety inspectors.

21 With respect to the meaning to be given to the expression “manufacturing process,” Mr. Lessard’s representative emphasized that the parties did not define that expression and that I should therefore rely on the ordinary meaning of the words. He referred to the definitions provided in the Dictionnaire de la langue française Larousse.

22 Mr. Lessard’s representative attested that Mr. Lessard’s experience at the Health Canada culture medium manufacturing laboratory corresponded completely to the ordinary meaning of a manufacturing process and that, since Mr. Lessard had over 10 years of experience at Health Canada, he was eligible for the terminable allowance provided for in Appendix “P” of the collective agreement.

23 In support of his position, Mr. Lessard’s representative cited Brown and Beatty, Canadian Labour Arbitration, as well as Belliveau et al. v. Treasury Board (Transport Canada), 2006 PSLRB 121, and Brisson and Dubeau v. Canadian Food Inspection Agency, 2005 PSLRB 38, particularly the following passage from Brisson and Dubeau: “The adjudicator, when dealing with a clear clause, cannot add terms that might have the effect of expanding or diminishing the clause’s scope…”

24 With respect to corrective action, Mr. Lessard’s representative submitted that Mr. Lessard was eligible for the terminable allowance retroactively to the date the collective agreement was signed. Furthermore, he maintained that Mr. Lessard should receive the terminable allowance starting 25 days before the date on which he filed his grievance.

B. For the employer

25 Counsel for the employer put forward an interpretation contrary to that proposed by Mr. Lessard. In the employer’s opinion, the manufacturing process experience criterion must be interpreted to mean manufacturing process experience related to the aviation field. According to the employer, that is the only interpretation that respects the purpose, objective and context of Appendix “P” of the collective agreement. Counsel for the employer emphasized the objective of the appendix, which forms part of the objective of retaining employees having very specific profiles and occupying listed positions. The parties did not merely identify the incumbents of particular positions, they identified the incumbents of particular positions who have specific qualifications. According to the employer, those qualifications must necessarily be related to the duties of the positions concerned.

26 Counsel for the employer asked me to adopt an interpretation taking into account the context of Appendix “P” of the collective agreement, emphasizing that it is not appropriate to give expressions their ordinary meaning if that meaning does not reflect the parties’ intention. According to the employer, in this case the expressions used by the parties must be given the meaning that best corresponds to the meaning and purposes of the clauses concerned. In the employer’s opinion, Mr. Lessard’s proposed interpretation is much too broad and permissive to correspond to the objective of employee retention or the exceptional nature of the measures provided for in Appendix “P” of the collective agreement. The employer asserted that manufacturing process experience must be related to the civil aviation or aeronautics field. According to the employer, that interpretation corresponds to the profile descriptions of the other positions listed in Appendix “P,” in which the required experience is always specific.

27 Furthermore, the employer maintained that, even if I found that the manufacturing process experience criterion need not be related to the aviation field, I should not use the general definition “manufacturing process” proposed by Mr. Lessard’s representative. Counsel for the employer asserted that the interpretation that Mr. Lessard’s representative proposed was much too broad and that, if it were used, everyone would be recognized as having manufacturing process experience. He suggested that the concept of “manufacturing process” had more to do with the industrial and manufacturing sector than with the scientific sector. In his opinion, Mr. Lessard’s experience corresponded not to the manufacturing process but to scientific procedure and experimentation.

28 With respect to corrective action, the employer maintained that I could not order retroactive payment of the terminable allowance to more than 25 days before the date on which the grievance was filed.

29 In support of its position, the employer cited the following decisions: Yarmolinsky v. Canada Customs and Revenue Agency, 2005 PSLRB 170; Côté et al. v. Treasury Board (Transport Canada), PSSRB File Nos. 166-02-16256 to 16258 (19870629); and Plamondon v. Treasury Board (Communications Canada), PSSRB File No. 166-02-14834 (19850321).

30 In support of its position on corrective action, the employer cited Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (QL) (C.A.), and Gasbarro v. Treasury Board (Canadian Transportation Accident Investigation and Safety Board), 2007 PSLRB 87.

IV. Reasons

31 This grievance has to do with interpreting Appendix “P” of the collective agreement and particularly the required profile description for one of the civil aviation safety inspector groups. Since the employer admitted at the hearing that Mr. Lessard occupied a position as a civil aviation safety inspector and that he holds a college diploma as well as a university certificate, the only eligibility criterion in dispute is Mr. Lessard’s manufacturing process experience.

32 In settling the dispute, I must interpret the wording of Appendix “P” to ascertain the parties’ intentions. In Canadian Labour Arbitration, authors Brown and Beatty clearly summarize the rules of interpretation that must guide an adjudicator who is called on to interpret the provisions of a collective agreement:

…

It has often been stated that the fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to it…

…

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions…

…

In searching for the parties’ intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense unless that would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense… .

…

33 In applying those principles, I must first determine whether the manufacturing process experience required under Appendix “P” must be related to the civil aviation or aeronautics field. Applying the principles of interpretation to this case leads me to favour the interpretation that Mr. Lessard’s representative proposed that manufacturing process experience may be general and that it must not necessarily be related to the civil aviation or aeronautics field.

34 First, the wording of Appendix “P” does not specify that manufacturing process experience must be related to a particular field. It is helpful to note that for certain positions the parties were much more specific about the eligibility criterion of experience. For example, for the incumbents of positions in the marine operations field, the required experience must be related to vessel design, construction, operation or maintenance. For air investigators, aircraft inspectors and another group of civil aviation safety inspectors, the required experience must be related to aircraft maintenance. For the incumbents of positions in the rail operations field, the required experience must be related to rail operations. Additionally, one part of the section relevant to this case is very specific about required experience: non-destructive test specialists must have specific experience in the field of non-destructive testing.

35 The only group for which the appendix refers to general experience is the civil aviation safety inspectors group. Reading Appendix “P” in its entirety leads me to think that the parties, who were quite specific about certain other positions, voluntarily chose to set out a much more general profile for the civil aviation safety inspectors contemplated in that section. The parties used a common pattern to establish the experience criteria for all listed groups, with the exception of civil aviation safety inspectors. In my opinion, in so doing the parties voluntarily set out a more general profile for that group of employees.

36 That impression gains strength when I consider the training requirement. Civil aviation safety inspectors must have a university degree or a college certificate or membership in the American Society for Quality Control (ASQC). No field of study is specified. With respect to the ASQC, I have no evidence before me that allows me to find that that association is specific to the aviation or aeronautics field. In my opinion, as is the case with the experience requirement, the parties voluntarily chose to set out a general profile.

37 In my opinion, in adopting the interpretation proposed by the employer, I would be adding to the actual wording of Appendix “P” of the collective agreement. Also in my opinion, in requiring manufacturing process experience in any field whatsoever, setting out a general profile may very well be part of the objective of employee retention, and it may correspond to the purpose and objective of the appendix. Provision was made for the terminable allowances in a context of retaining employees having specific profiles and occupying certain positions. I see nothing incongruous in the parties’ intention to set out only a general profile for certain positions, for reasons they considered relevant.

38 Therefore, I conclude that Appendix “P” of the collective agreement does not require civil aviation safety inspectors to have manufacturing process experience related to the aviation or aeronautics field.

39 I must now determine whether Mr. Lessard’s experience at Health Canada may be considered manufacturing process experience. The employer has asked me to adopt a more restrictive interpretation of the expression “manufacturing process” than what Mr. Lessard proposed, suggesting that the expression was limited to the industrial and manufacturing sector. Mr. Lessard’s representative for his part referred me to the following definitions provided in the Dictionnaire de la langue française Larousse:

[Translation]

Process: Method of obtaining a certain result …

Manufacture: To manufacture an object, to make from raw materials …

Manufacturing: The making of an object or of products …

40 I rely on those definitions and am of the opinion that, in this case, it is not appropriate to depart from the ordinary meaning of the words. Nor do I see on what basis I would limit the manufacturing process experience required under Appendix “P” to the industrial or manufacturing sector. In applying the definitions provided in the dictionary for the expressions “process,” “manufacture” and “manufacturing,” I am of the opinion that Mr. Lessard’s work experience at Health Canada may be considered manufacturing process experience. The evidence has established that the laboratory technologists manufactured microbiology culture mediums, solutions and supplements by following recipes and using materials and ingredients. The culture mediums, solutions and supplements are a “product” that is different from the initial ingredients. The ingredients are the raw materials that are processed by means of a method, a process, a specific recipe. In my opinion, the process corresponds to a general concept of what is meant by a manufacturing process. Appendix “P” of the collective agreement does not specify that the employee must have designed a manufacturing process; the employee must simply have manufacturing process experience. In my opinion, Mr. Lessard has that experience because he was called on to apply and to supervise the implementation of processes for manufacturing microbiology culture mediums, solutions and supplements. Since nothing in Appendix “P” leads me to adopt a more restrictive interpretation of the expression “manufacturing process,” I am of the opinion that Mr. Lessard’s experience satisfies the eligibility criterion set out in Appendix ”P.” With respect to the length of Mr. Lessard’s experience, the evidence has established that his experience totalled 10 years and 8 months. In light of the foregoing, therefore, I conclude that Mr. Lessard satisfies the eligibility criteria for payment of the terminable allowance.

41 On corrective action, clause 18.10 of the collective agreement provides as follows:

18.10 An employee may present a grievance to the First Level of the procedure in the manner prescribed in clause 18.05 not later than the twenty-fifth (25^th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

42 I do not see on what basis I would order payment of the terminable allowance starting on the date the collective agreement was signed. In addition, since I do not know the exact dates on which Mr. Lessard made his request to the employer or on which the employer responded, I am of the opinion that, based on clause 18.10 of the collective agreement, I cannot make payment of the allowance retroactive to more than 25 days before the date on which the grievance was filed.

43 For all the above reasons, I make the following order:

V. Order

44 The grievance is allowed.

45 The employer is ordered to pay Mr. Lessard, starting November 15, 2005, the terminable allowance provided for in Appendix “P” of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Technical Services Group that was signed on March 14, 2005 (expiry date: June 21, 2007).

March 16, 2009.

PSLRB Translation

Marie-Josée Bédard,
adjudicator