FPSLREB Decisions

I. Grievances referred to adjudication

1 This interim decision concerns 8 of 14 grievances originally filed by employees of the Department of National Defence at the Fleet Maintenance Facility (FMF) Cape Breton, Canadian Forces Base (CFB) Esquimalt, claiming entitlement to compensation for working outside normal working hours while conducting sea trials pursuant to article 32 of the collective agreement between the International Brotherhood of Electrical Workers, Local 2228 (“the union” or IBEW) and Treasury Board (“the employer”), expiry date August 31, 2004. That collective agreement remained in force until the signing of a new one on December 22, 2005. The grievors are electronic technologists classified EL-06.

2 At the hearing, the parties advised me that five of the original grievances had been settled, leaving the following grievances still to be resolved: PSLRB File Nos. 566-02-580 and 581 (Bromma), 566-02-583 and 584 (Buckley), 566-02-586 (Rutley), 566-02-588 (Skrobotz), and 566-02-592 and 593 (Walts). I was later advised that a sixth grievance, PSLRB File No. 566-02-591 (Vinden), was also settled.

3 This dispute has followed a circuitous route. The union filed a group grievance on July 8, 2005, on behalf of 16 employees of the FMF Cape Breton alleging that the employer violated article 32 “Sea Trials Allowance” of the collective agreement by issuing a work instruction that changed the hours of employees scheduled to work on sea trials. That grievance was referred to adjudication on May 11, 2006 and was heard in 2008. A preliminary decision, International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board (Department of National Defence), 2008 PSLRB 36 (IBEW #1), which dealt with jurisdictional questions, was issued on May 22, 2008, and a decision on the merits of that grievance, International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board (Department of National Defence), 2009 PSLRB 2 (IBEW #2), was issued on January 20, 2009.

4 Those two decisions are important to these grievances. The group grievance alleged that the employer had scheduled the grievors to work evenings and nights during sea trials, in contravention of the collective agreement.  The group on behalf of whom the grievance was filed included employees scheduled to work sea trials in the fall of 2005 and early 2006. As a result of the procedural ruling in IBEW #1 that found that the group grievance was premature for all but three of the grievors, the only sea trial that was at issue was the one in July 2005.  But it is significant that the grievors in these grievances were in the group of employees for whom the group grievance was found to be premature.

5 IBEW #2 determined the substantive issues between the parties.  The issues before the adjudicator in that decision were how to interpret the phrase “when circumstances warrant” in clause 23.15 of the collective agreement and to determine the extent to which, on the evidence before him, the circumstances warranted the employer changing the affected grievors’ normal hours of work for the July 2005 sea trial.

6 The adjudicator’s analysis of clause 23.15 of the collective agreement, in particular the phrase “when circumstances warrant,” led him to conclude that the right to change hours of work “when circumstances warrant” could be exercised only in exceptional circumstances and required the employer to “…inquire into the specific circumstances of a situation to establish the need to treat it as an exception” (at paragraph 110).

7 Applying that analysis, the adjudicator found that the employer based its decision to change the hours of work for the employees scheduled to work on the July 2005 sea trial on a general work policy designed to limit overtime costs rather than on an the specific circumstances of that sea trial. The adjudicator held that such financial considerations “…are not sufficient in and of themselves to establish that the specific circumstances of the sea trial scheduled for July 11, 2005 – or any other specific sea trial – warranted the use of clause 23.15” (at paragraph 111). As a result, the adjudicator allowed the group grievance, finding that the employer had not turned its mind to the specific circumstances of the sea trial in order to determine whether circumstances warranted changing the grievors’ regular hours of work.

8 At the outset of this hearing, the parties advised me that they had a significant difference of opinion as to the impact of the earlier decision on these grievances. They were of the opinion that this issue must be resolved before evidence relating to the grievances could be heard. Specifically, the parties disagreed as to whether the principle of issue estoppel applies to these grievances and prevents the employer from adducing further evidence of the circumstances that warranted the change to working hours for the sea trials that are in issue in these grievances.

9 It was agreed to adjourn the hearing in order to allow the parties to provide written submissions on the application of the principle of issue estoppel to these grievances.

II. Summary of the evidence

10 According to the agreed statement of facts submitted by the parties, all the grievors filed grievances alleging that the employer violated the collective agreement by changing their normally scheduled hours of work to accommodate their work assignments during sea trials in August and September, 2005 and January 2006.

11 Specifically, grievors Bromma, Buckley, Rutley and Walts were assigned to work the sea trials scheduled in August 2005 and had their normal hours of work changed by the employer. As a consequence, their overtime claims for the time worked outside their normally scheduled hours were denied.

12 Mr. Walts worked on the September 2005 sea trial. That overtime claim was also denied because his normally scheduled hours of work were changed to accommodate the sea trial.

13 Grievors Bromma, Buckley and Skrobotz worked on the January 2006 sea trial.  Their overtime claims were denied because the employer changed their normally scheduled hours of work to accommodate the sea trial.

14 In each case, the grievors filed individual grievances against the changes to their regularly scheduled hours of work and the denial of their requests for overtime compensation. Those grievances were denied by the employer.  At the first and second levels of the grievance process, the employer referred to the similarity between these grievances and the group grievance filed earlier and working its way through the grievance process (IBEW #2).

15 The agreed statement of facts included as exhibits the IBEW #2 decisionand all the exhibits filed in that case, as well as all the Extra Duty Reports, grievances and grievance replies applicable to the individual grievances before me.

III. Written submissions

A. For the union

16 The union notes that, although arbitrators are not strictly bound to follow prior awards, arbitral decisions have significant precedential value that is important in assisting the parties in managing their ongoing relationship.The union submits that the grievance process is intended to provide the final resolution of disputes, which cannot happen if issues are litigated and relitigated without finality.

17 The union argues that issue estoppel applies not only to prior awards between the same parties on the same issue but also to any right, question or fact in issue between the parties that has been previously decided. Once an issue between two parties has been decided it cannot be re-tried between those two parties, even in a different matter or cause of action.

18 Given this, the union argues that the award in IBEW #2 conclusively decided the substantive issues between the parties and that those issues should not be relitigated. In particular, the union argues that the principal issue in IBEW #2 was the interpretation and application of clause 23.15 of the collective agreement, specifically whether the employer’s decision to change the grievors’ normal working hours based on a general work instruction that was motivated by a desire to reduce overtime expenses, satisfied the condition precedent set out in clause 23.15.

19 The union asserts that, after several days of testimony and argument, the adjudicator in IBEW #2 found that, on the language of clause 23.15 of the collective agreement, the employer is obligated to assess the circumstances of each sea trial to determine whether exceptional circumstances exist that justify the change in hours of work. Furthermore, the adjudicator found that the employer changed the hours of work for the July 2005 sea trials because of the work instruction of May 2005 and that this established a standard practice that was applied to subsequent sea trials.

20 The union submits that the findings of the adjudicator in IBEW #2 establish a precedent that applies not only generally but also specifically to the circumstances of these grievances, as they deal with the sea trials originally included in the group grievance, but found to be premature.

21  The union submits that the issue to be determined in this case should be limited to the dates of the sea trials in question and to the amount of compensation owed to each grievor.

22 The union cites the following decisions in support of its position:  Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para. 1:3100; Ford Electronics Manufacturing Corporation v. International Association of Machinists and Aerospace Workers, Local 2113 (2000), 86 L.A.C. (4th) 409; Phillips Cables Ltd. v. United Electrical, Radio and Machine Workers, Local 510 (1977), 16 L.A.C. (2d) 225; and Ford Motor Co. of Canada v. Ontario (Human Rights Commission (2001), 209 D.L.R. (4th) 465.

B. For the employer

23 The employer submits that for the principle of issue estoppel to apply, the issues and the factual circumstances must be the same in the subsequent case as in the original one.  Here they are not.Although the union may presume that the circumstances that led to the change to hours of work for the sea trials in these grievances are the same as the circumstances that led to the change to hours of work in IBEW #2, in fact, they are quite different.

24 The employer states that, afforded the opportunity, it would adduce evidence of the specific circumstances that led it to change the hours of work in each sea trial mentioned in these grievances.

25 The employer asserts that no evidence before me allows me to conclude that the factual circumstances that led it to change the hours of work for the July 2005 sea trials, considered in IBEW #2, are the same as those that it led to change the hours of work for the sea trials in these grievances.

26 The employer argues that the decision in IBEW #2 is clearly limited to its particular facts. The adjudicator in that case dealt only with the circumstances of the July 2005 sea trial.  Furthermore, the adjudicator in that case was clear that clause 23.15 of the collective agreement requires the employer to justify its decision to change employees’ hours of work on a case-by-case basis. 

27 The employer submits that it has not had an opportunity to demonstrate the circumstances surrounding the sea trials of August and September 2005 and January 2006.  Given that fact, it must be afforded the opportunity to present evidence on the specific circumstances that led to its decision to change the grievors’ hours of work for the sea trials in these grievances.

28 For all of those reasons, the employer asserts that the principle of issue estoppel does not apply to these grievances.

C. The union’s response

29 The union notes that the group grievance, which alleged that the employer was scheduling employees for evening and night shifts, in contravention of the collective agreement, was filed on behalf of 16 employees, including these grievors.  Because of a preliminary objection filed by the employer, the group grievance was found premature for all but three of the grievors named in it.  The union asserts that these grievances involve the same group of grievors, along with the same circumstances as those found premature. The union argues that the same work instruction that led to the change to hours of work in IBEW #2 also applied to these grievances. The factual circumstances are, therefore, the same.  Since the factual circumstances were adjudicated in IBEW # 2, they should not be relitigated.

30 The union also argues that the employer is attempting to change its position with respect to these grievances based on IBEW #2. Throughout the grievance process, the employer took the position that these grievances were identical to the group grievance, and it adopted a uniform response.  Only after IBEW #2, did employer assert that the factual circumstances differ for each sea trial.

31 The union asserts that the employer should not be allowed to change the position that it held throughout the grievance process; nor should it be allowed to add issues that it had not raised previously. The union argues that allowing the employer to change its position at this late stage in the process would undermine and frustrate the grievance process.  That would be, the union argues, an abuse of process.

32 The union cites the following decisions in support of its position: Fuller Austin Insulation Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2103 (2002), 107 L.A.C. (4th) 421; and Office and Professional Employees Union, Local 343 v. United Steelworkers (1972), 24 L.A.C. 1.

IV. Reasons

33 The parties have asked me to determine whether the principle of issue estoppel applies.  The union asserts that the issues raised in these grievances has already been adjudicated in IBEW #2.  The employer, on the other hand, argues that although the issues in the current grievances are similar to those in IBEW #2, that decision established only that the analysis required to determine if the collective agreement was violated is based on facts and events. The facts and events of these grievances differ IBEW #2.

34   I have no hesitation agreeing that it is a matter of sensible policy for an adjudicator to follow the decision of an earlier adjudicator on matters involving the same parties, the same collective agreement and the same issues, unless there is a particular problem with the earlier decision.  Adjudication decisions provide guidance to the parties in their ongoing relationship. They must be able to rely on consistency and finality.  I agree with the adjudicator in Timson et al. v. Treasury Board (Correctional Services of Canada), 2011 PSLRB8, who noted that “the finality of the adjudication process under subsection 233(1) of the PSLRA … suggests an inclination for maintaining the effect of earlier awards but not without considering the legitimate interests of each party” (at para.22).

35 It is seems evident that IBEW #2 establishes a precedent that I believe applies to these grievances.  I have no hesitation accepting the adjudicator’s conclusion in that case that the phrase, “when circumstances warrant” in clause 23.15 of the collective agreement should be interpreted as giving the employer the ability to change the normal hours of work only in exceptional circumstances and that the employer must actually turn its mind to the specific circumstances of each situation to determine whether exceptional circumstances exist. Nor do I have any hesitation accepting the adjudicator’s finding that financial motivations in and of themselves are not sufficient to establish the exceptional circumstances required to justify changing normal hours of work under to clause 23.15.

36 However, while IBEW #2 does establish principles of general application to these grievances, it was ultimately based only on the evidence of the sea trial of July 11, 2005, and not on sea trials in general. It made no finding that could lead me to conclude that the employer treated all sea trials identically.  The question as to whether the employer turned its mind to the specific circumstances of the sea trials in these grievances was certainly not addressed.  On that basis, in spite of the union’s objection, I find that the employer must be allowed to adduce evidence about the specific circumstances of the sea trials in these grievances.

37 However, that does not resolve the issue between the parties. The union argues that the employer has materially changed its position with respect to these grievances because of IBEW #2.  Throughout the grievance process, the employer took the position that the grievances mirrored the facts of the group grievance. Only now, after the decision in IBEW #2, does the employer take the position that there are facts unique to each sea trial that justify the change to hours of work.  The union argues that allowing the employer to change its position at this stage would constitute an abuse of process.

38 I am sympathetic to that argument.  If the grievance process is to be effective, it is essential that the parties know the issues.  Nevertheless, as grievances progress it is inevitable that the parties’ positions may change somewhat.  One of the purposes of the grievance process is to provide disclosure of the parties’ positions, so that disputes can be resolved. Therefore, it seems to me that any prejudice to the union from the employer’s apparent change in position can be corrected by full disclosure in advance of the hearing. 

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

V. Order

39 The union’s request that the employer’s be prevented from adducing evidence about the sea trials of August and September 2008 and January 2009 on the grounds of issue estoppel is denied. The employer is entitled to adduce evidence about the specific circumstances of the sea trials at issue in these grievances.

40 The employer must provide full disclosure to the union of the evidence that it intends to adduce about the specific circumstances that warranted changing the hours of work of the grievors for the sea trials that are the subject matter of these grievances within 30 days of this decision.

41 A hearing on the merits of these grievances is to be convened on dates to be determined by the Registry of the Public Service Labour Relations Board in consultation with the parties.

March 7, 2011.

Kate Rogers,
adjudicator