FPSLREB Decisions

I. Policy grievance referred to adjudication

1 On December 2, 2009, the Professional Institute of the Public Service of Canada (“the bargaining agent”) filed a policy grievance against the Treasury Board (“the employer”) under subsection 220(1) of the Public Service Labour Relations Act, S.C. 2003, c. 22 (“the Act”) on behalf of the Audit, Commerce and Purchasing (AV) Group. The grievance reads as follows:

The Professional Institute of the Public Service of Canada grieves the employer’s application and interpretation of article 15.18 of the collective agreement.

[corrective action]

We ask that the employer immediately cease and desist its current interpretation of article 15.18 and reinstitute its past practice.

If anyone has been denied their one time entitlement to 5 days vacation leave as laid out in 15.18 for reason of having transferred from another department, they shall immediately have this leave reinstated.

2 Clause 15.18 forms part of the collective agreement for the AV Group, which expires June 21, 2011 (“the collective agreement”). It reads as follows:

15.18

(a) Employees shall be credited a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay on the first (1^st) day of the month following the employee's second (2^nd) anniversary of service, as defined in clause 15.03.

(b) Transitional Provisions

Effective on June 22, 2007, employees with more than two (2) years of service, as defined in clause 15.03, shall be credited a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay.

(c) The vacation leave credits provided in paragraphs 15.18(a) and (b) above shall be excluded from the application of clause 15.07 dealing with the Carry-over and/or Liquidation of Vacation Leave.

3 The essence of the bargaining agent’s claim was that an employee entering the AV bargaining unit should receive the vacation entitlement provided under clause 15.18(a) of the collective agreement regardless of whether that employee previously received a similar entitlement while in another bargaining unit, provided that he or she meets the eligibility criteria set out in the collective agreement. The employer disagreed. In denying the policy grievance on February 15, 2010, the employer maintained that the provision conferred a one-time entitlement and that entrants into the AV group who already received a similar entitlement under another collective agreement do not re-earn the same entitlement once in the AV group.

4 The bargaining agent referred the matter to the Public Service Labour Relations Board (“the Board”) for adjudication on March 18, 2010.

II. Summary of the evidence

5 The parties submitted an “Agreed Statement of Facts”, with supporting documents, as follows:

…

1. The applicable collective agreement in this matter is the Audit, Commerce and Purchasing (AV) collective agreement signed by PIPSC and TBS representatives on June 25^th, 2009 which has an expiry date of June 21, 2011. (Tab 1)
2. Through collective bargaining, new language was introduced to provide a one time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay. The parties intended that this new language as set out in 15.18 was introduced to replace the previous existing language related to marriage leave (article 17.12(d) of the previous collective agreement (AV collective agreement expired on June 21^st 2007). (Tab 2)
3. A policy grievance was submitted on December 2, 2009 contesting the employer’s application and interpretation of Article 15.18 of the AV collective agreement (Tab 3).
4. The position of the parties is as follows:

   A.     Bargaining Agent

   The Bargaining Agent takes the position that the proper interpretation to be given to Article 15.18 is that the entitlement is bargaining unit specific. Regardless of whether an employee in the Public Service has received a similar entitlement while in another bargaining unit, she is entitled to receive the entitlement of article 15.18 upon entering the Audit, Commerce and Purchasing (AV) bargaining unit and upon the completion of two years service within the Public Service as provided for in article 15.18.

   B.      Employer

   The Employer takes the position that the “one-time entitlement” restriction in Article 15.18 is Public Service specific and not bargaining unit specific. The Employer’s position is that once an employee in the Public Service receives the entitlement they are not entitled to it again, even if they subsequently occupy a position in another bargaining unit.

5. The grievance and corrective action were denied on February 15, 2010. (Tab 4)
6. The policy grievance was referred to adjudication on March 18, 2010.
7. There are individual grievances relating to similar provisions in other Treasury Board Secretariat collective agreements, including two from the SP collective agreement which are being held in abeyance pending the outcome of the within policy grievance.

…

6 On consent, I admitted as exhibits the following three collective agreements between the same parties: the collective agreement for the Applied Science and Patent Examination (SP) Group, which expires September 30, 2011 (Exhibit G-1), the collective agreement for the Architecture, Engineering and Land Survey (AR/EN) Group, which expires September 30, 2011 (Exhibit G-2), and the collective agreement for the Computer Systems (CS) Group, which expired December 21, 2010 (Exhibit G-3). The parties stipulated that a provision similar to clause 15.18 of the AV collective agreement appears as SP clause 15.19, AR/EN clause 15.17 and CS clause 15.18.

7 Both parties elected to present their arguments without calling oral testimony.

III. Summary of the arguments

8 The parties provided written outlines of their oral arguments from which I have drawn the following summaries.

A. For the bargaining agent

9 An adjudicator must apply the words chosen by the parties to the agreement or included as a result of an arbitral award. An adjudicator must give the words their ordinary meaning and must avoid looking beyond the words to search for the parties’ intent. Simply put, the parties’ rights or obligations flow from the text of the agreement, unless its ordinary meaning leads to an incongruity or a truly absurd result. See Public Service Alliance of Canada v. Communications Security Establishment, 2009 PSLRB 121, at para 162 and Brown and Beatty, Canadian Labour Arbitration, 4th ed., (“Brown and Beatty”), at para 4:2100.

10 Clause 15.18 of the collective agreement applies to all qualifying employees of the AV bargaining unit without limitation. Thus, those employees are entitled to the leave stipulated by clause 15.18 if they are employees within the meaning of the Act, are members of the AV bargaining unit and have completed two years of service within the public service, whether continuous or discontinuous.

11 The employer seeks, in effect, to add language to limit the entitlement stated by clause 15.18 of the collective agreement to those employees who did not benefit from a similar provision while they were members of other bargaining units with the employer. Its approach would disregard specific terminology in the collective agreement, namely, that an employee who is “a member of the bargaining unit” is entitled to leave under clause 15.18.

12 Clear language is required to deny a collective agreement benefit to an employee: United Nurses of Alberta, Local 121-R v. Calgary Regional Health Authority (2000), 93 L.A.C. (4th) 427, para 24 and 25. Consequently, for the employer’s interpretation to be correct, clause 15.18 of the collective agreement should have read, “… a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay during the career of the employee in the federal civil service.” There is no such clear language in the clause at issue.

13 To accept the employer’s argument that clause 15.18 of the collective agreement applies only once to an employee’s entire term of public service would be to add language to the provision, which is not within the Board’s jurisdiction: S.E.I.U., Local 268 v. US.W.A, Local 5481 (1994), 43 L.A.C. (4th) 76. There is no evidence that the bargaining agent would have agreed to such additional language: Foote v. Treasury Board (Department of Public Works and Government Services), 2009 PSLRB 142, at para 28 and 31.

14 If an employer seeks to limit a benefit in a collective agreement, it requires the agreement of the bargaining agent to include such a limitation. It cannot otherwise resile from the plain meaning of a collective agreement provision: Klock v. Canada Revenue Agency, 2009 PSLRB 99, at para 21, and Julien v. Treasury Board (Canada Border Services Agency), 2008 PSLRB 67, at para 20.

15 The threshold for finding that the plain language used by the parties leads to a result that must be rejected as absurd is a high one. The plain meaning of the words must result in an outcome that serves no possible labour relations purpose and is justified by no coherent labour relations rationale. The outcome must be otherwise unworkable: Mitchnik et al., Leading Cases on Labour Arbitration, Vol. 3, Ontario Finnish Resthome Assn. v. Service Employees International Union, Local 268, [2004] O.L.A.A. No. 371 (QL), and Canada Post Corporation v. Canadian Union of Postal Workers, (1993) 34 L.A.C. (4th) 139.

16 Simply because the employer disagrees with the meaning of a particular provision does not mean that the provision is not clear on its face. The mere fact that the application of a provision produces a result that is unpalatable to one of the parties does not in itself establish an ambiguity: General Spring Products Ltd. v. U.A.W. Local 1524 (1971), 23 L.A.C. 73.

17 Clause 15.18 of the collective agreement is clear on its face. It cannot be said that the provision serves no possible labour relations purpose. The clause as written is consistent with the principle of exclusive representation, which is a cornerstone of collective bargaining. Even though the employer finds the result unpalatable, the clear interpretation must stand.

18 The bargaining agent has no responsibility for collective agreements negotiated by other bargaining agents. Moreover, even though it represents a number of groups employed by the Treasury Board, each group is distinct, and the collective agreement for each is negotiated separately. Based on the recognition provision in the collective agreement (clause 25.01) and the principle of exclusive representation enshrined by section 67 of the Act, the employer’s proposed interpretation could be valid only if the AV collective agreement contained an annex listing all other implicated collective agreements, signed by all relevant negotiators.

19 The bargaining agent submits that the adjudicator should uphold the grievance and requests that he (1) declare that any AV bargaining unit member who has achieved two years of service as defined by clause 15.03 of the collective agreement is eligible to receive the entitlement under clause 15.18 regardless of whether he or she has received a similar entitlement under another collective agreement, and (2) order that any employee who has been denied entitlement to leave under clause 15.18 by reason of having received a similar entitlement under another collective agreement have that leave reinstated.

B. For the employer

20 The employer referred me to Palmer and Snyder, Collective Agreement Arbitration in Canada, 4th ed., at para 2.1, 2.10 and 2.17, for rules of interpretation that should apply.

21 The employer contends that, once an employee receives the entitlement to 37.5 hours of vacation leave under clause 15.18 of the collective agreement anywhere in the public service, they are not entitled to it again.

22 Paragraph (a) of clause 15.18 of the collective agreement applies to new employees. Once they reach the first day following their first two years of service, they qualify for the one-time entitlement. Paragraph (b) applies to employees who had already been in the public service more than two years as of June 22, 2007. Without paragraph (b), those employees would not benefit from the entitlement because they would never reach the triggering event, that is, the first day after their second year of service (that triggering event having already occurred for them). Paragraph (b) provides that all employees in the public service covered by the collective agreement with more than two years of service effective June 22, 2007, will receive the one-time entitlement. They receive that entitlement despite the fact that they will never again reach the triggering date identified in paragraph (a).

23 Clause 15.18 of the collective agreement creates a special “one-time entitlement.” The ultimate question is, what does “one-time” mean?

24 Although the bargaining agent points out that the definition of “employee” in the collective agreement refers to employees in the bargaining unit, the limitation expressed in clause 15.18 does not specify “employees with more than two years of service.” Instead, it refers to service “as defined in clause 15.03.” The immediate context for the term “one-time” is thus found in clause 15.03, which defines the qualifying service for vacation leave purposes as service within the public service.

25 It is clear from clause 15.03 of the collective agreement that “… all service within the Public Service, whether continuous or discontinuous, shall count toward vacation leave …” Had it been the intent of the parties to count only the service of employees while in the AV bargaining unit, there would have been no need to refer to clause 15.03 in clause 15.18.

26 Had the parties intended the entitlement to leave under clause 15.18 of the collective agreement to be a gift upon entering the AV bargaining unit and staying in that unit for more than two years, the clause would have read as follows:

Effective on June 22, 2007, employees with more than two (2) years of service in the AV bargaining unit shall be credited a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave. Employees will be entitled to this leave regardless of the fact that they have received the same leave in other occupational group or groups in the Public Service.

The parties did not negotiate such language. The parties restricted the entitlement to employees with more than two years of service “as defined in clause 15.03.”

27 The following example illustrates the point. Assume employee Y has moved between five bargaining units, each for a period of two years minus a day. Is that employee not entitled to the one-time vacation leave? The employer submits that the answer should be in the affirmative because the parties have defined the qualifying service as any service within the public service.

28 Because the qualifying period for the entitlement under clause 15.18 of the collective agreement is public-service-wide, the employer argues that the intent of the parties was to make the entitlement “one-time” for employees while in the public service and not a one-time entitlement for every bargaining unit that has the same entitlement as clause 15.18.

29 The bargaining agent’s position is inconsistent with the parties’ use of the phrase “one-time entitlement” in clause 15.18 of the collective agreement. The parties used that phrase in the same article in which they defined the qualifying period as being more than two years of service in the public service. Any other interpretation would result in an absurdity. Could it have been the intent of the parties that this one-time entitlement might be enjoyed by employee X once in her career because she has spent all her time in the AV group while employee Y, who has landed in numerous positions in different bargaining units, enjoys the one-time benefit numerous times? The answer to that question must be in the negative. The intent of the parties was to make the one-time entitlement truly “one-time.” If an employee receives the entitlement anywhere in the public service, he or she is not entitled to receive it again.

30 The employer submits that the bargaining agent failed to meet its burden of establishing a breach of the collective agreement and requests that the grievance be denied in its entirety.

C. Bargaining agent’s rebuttal

31 The remedy proposed by the bargaining agent is consistent with section 232 of the Act: Attorney General of Canada v. Canadian Merchant Service Guild, 2009 FC 344, at para 18 and 22.

32 Contrary to the employer’s submission, the bargaining agent does not maintain that the entitlement under clause 15.18 of the collective agreement is contingent upon an employee staying in the AV bargaining unit for two years. All service, public service-wide, counts. Because service is public-service-wide, it does not follow that there is a limit on the number of times that an employee may receive the entitlement. The definition of qualifying service and the entitlement to the benefit under clause 15.18 are separate concepts.

33 The bargaining agent reiterated that receiving the entitlement to 37.5 hours of vacation leave multiple times is not an absurd result.

D. Supplementary question

34 I asked both parties whether clause 14.02 in the “Leave-General” article of the collective agreement, which reads as follows, has any bearing on the matter before me:

14.02 The amount of leave with pay credited to an employee by the Employer at the time when this Agreement is signed, or at the time when the employee becomes subject to this Agreement, shall be retained by the employee.

35 The bargaining agent submitted that clause 14.02 is irrelevant. The employer argued that clause 14.02 supports its position on the interpretation to be given to a one-time entitlement under clause 15.18.

IV. Reasons

36 The bargaining agent bears the burden of proving that, on a balance of probabilities, the employer breached clause 15.18 of the collective agreement, which reads as follows:

15.18

(a) Employees shall be credited a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay on the first (1^st) day of the month following the employee's second (2^nd) anniversary of service, as defined in clause 15.03.

(b) Transitional Provisions

Effective on June 22, 2007, employees with more than two (2) years of service, as defined in clause 15.03, shall be credited a one-time entitlement of thirty-seven decimal five (37.5) hours of vacation leave with pay.

(c) The vacation leave credits provided in paragraphs 15.18(a) and (b) above shall be excluded from the application of clause 15.07 dealing with the Carry-over and/or Liquidation of Vacation Leave.

37 Clause 15.03(a) of the collective agreement defines “service” as follows:

15.03

(a) For the purpose of clause 15.02 above only, all service within the Public Service, whether continuous or discontinuous, shall count toward vacation leave except where a person who, on leaving the Public Service, takes or has taken severance pay. However, the above exception shall not apply to an employee who receives severance pay on lay-off and is reappointed to the Public Service within one (1) year following the date of lay-off.

38 The bargaining agent asserts that clause 15.18 of the collective agreement is an unambiguous provision with a plain meaning that reveals the intent of the parties to confer an entitlement to “thirty-seven decimal five (37.5)” hours of vacation leave on any employee who is, or becomes, a member of the AV bargaining unit and who has completed two years of service within the public service, with “service” as defined under clause 15.03(a). It maintains that clause 15.18 states no limitation on the “one-time entitlement” that might arise from the operation of similar provisions in other collective agreements. For the bargaining agent, an adjudicator has no reason to depart from a strict construction of the words of clause 15.18 and must sustain its interpretation on that basis.

39 In paragraph 2 of the “Agreed Statement of Facts,” the parties attested that clause 15.18 of the collective agreement “… was introduced to replace the previous existing language related to marriage leave …” Expressed more colloquially, the evidence before me strongly suggests that a bargain was struck in negotiations. A previous entitlement to marriage leave was removed from the collective agreement and was replaced by the special “one-time entitlement” to 37.5 hours of vacation leave found in clause 15.18. The same result appears in each of the three other collective agreements between the parties submitted in evidence (Exhibits G-1 to G-3) — none now contains a marriage leave provision; each contains a provision essentially the same as clause 15.18.

40 In my view, that context is relevant to the matter that I must decide. Contrary to the bargaining agent’s assertion that, in effect, I must interpret clause 15.18 of the collective agreement as an AV-group-specific provision, I believe that there is a connection between collective agreement entitlements that cannot be ignored. Nor can it be ignored that the same replacement of a special vacation leave benefit for marriage leave occurred elsewhere, as stipulated by the parties. I asked them at the hearing about clause 14.02, in the “Leave–General” article precisely because that provision, in my opinion, authoritatively establishes a link between collective agreements. Clause 14.02 reads, once more, as follows:

14.02 The amount of leave with pay credited to an employee by the Employer at the time when this Agreement is signed, or at the time when the employee becomes subject to this Agreement, shall be retained by the employee.

41 Clause 14.02 of the collective agreement is the mechanism by which an entrant to the AV bargaining unit who previously earned but has not used the entitlement to the 37.5 hour one-time vacation leave benefit — for example, under clause 15.19 of the SP collective agreement — retains that entitlement as an employee in the AV group. By the plain meaning of the words of clause 14.02, annual leave acquired elsewhere under provisions similar to clause 15.18 continues to have status. Clause 14.02 thus forms part of the framework of the collective agreement that I must reconcile in trying to give clause 15.18 a consistent and harmonious interpretation.

42 Why is that important? In my reading of clause 15.18 of the collective agreement, I judge there to be at least latent ambiguity in the reference to the 37.5 hours of vacation leave as a “one-time entitlement.” Read in isolation, the words granting a “one-time entitlement” under clause 15.18 might be argued as being unequivocal on their face, but the clause does not operate in isolation. Within the context of other operative terms of the collective agreement, such as the cross-referenced clause 15.03 and clause 14.02, the interpretation of clause 15.18 becomes more uncertain or difficult: see Brown and Beatty, at paragraph 3:4401. That uncertainty or difficulty is manifest in the dispute that brought the parties to this hearing.

43 If I am to respect the apparent intent of the parties that the grant of 37.5 hours under clause 15.18 of the collective agreement is a “one-time entitlement,” how, for example, do I address the situation of an employee who has previously earned the same entitlement to 37.5 hours under another collective agreement and who has retained that entitlement as a new member of the AV group by virtue of clause 14.02 of its collective agreement? If I accept the bargaining agent’s position, that employee emerges with two one-time entitlements at the same time, both of which are sanctioned by the same collective agreement (one by clause 15.18 and the second by clause 14.02). In my respectful view, it strains credibility to conclude that the parties intended that outcome.

44 My assessment has led me instead to the view that the employer’s interpretation of clause 15.18 is more consistent with the architecture of the collective agreement as a whole, although perhaps not for all the reasons that it urges. Through clause 15.03, the parties purposively tied the operation of the vacation leave article to a public-service-wide definition of “service.” By dint of clause 15.03, the process of accumulating service for vacation purposes is not AV-group specific. The other provisions of article 15 need to be interpreted in harmony with that key element of the vacation leave regime negotiated by the parties. The effect of clause 14.02, which reinforces a public-service-wide approach, must also be reconciled as part of the framework of the collective agreement.

45 Against that context, I do not believe that it is reasonable and consistent to interpret clause 15.18 of the collective agreement in a fashion that accepts that a one-time entitlement can happen multiple times. For me, the reference to “one-time” in clause 15.18 acquires its meaning from the context of a single public-service-wide continuum of service accumulation for vacation leave purposes as set out in clause 15.03. There are points along that continuum at which employees earn new or additional vacation entitlements. They do not change their positions on the continuum — in terms of service accumulation — when they move from one bargaining unit to another. As the collective agreements adduced in this case show, there is a commonly identified point on the continuum at two years of service at which a commonly described special entitlement of 37.5 hours of vacation leave is earned. Each employee crosses that service threshold only once. Within those parameters, I do not believe that a one-time entitlement re-occurs.

46 Although not necessary to my analysis, my views about the meaning of clause 15.18 of the collective agreement are reinforced by a very practical sense of what occurred in the bargaining relationship between the parties. By the agreement that apparently was struck, employees gave up the previous entitlement to marriage leave and received as a replacement a one-time entitlement to 37.5 hours of vacation leave provided that they had two years of service in the public service, or once they reached that two-year service mark. In the context of the matter before me and the collective agreements that the parties provided, it seems most unlikely that any employee has been required to give up marriage leave twice. How, then, should they acquire the special vacation leave quid pro quo twice by virtue of moving from one collective agreement to another?

47 I have examined the case law offered by the bargaining agent for findings that might alter my perspective on this matter and found nothing that persuades me.

48 It is clear that I can have no quarrel, for example, with the basic proposition enunciated in United Nurses of Alberta, Local 121-R, that clear language is required todeprive an employee of a benefit. I also unreservedly accept the principle expressed in that decision, and in S.E.I.U., Local 268, that an adjudicator’s decision may not have the effect of adding new language to a collective agreement provision. However, I note that United Nurses of Alberta, Local 121-R, also endorsed the requirement to interpret a disputed provision “… in the context of the entirety of the … intention expressed in the article as a whole” when there is “… imprecision apparent in the provisions of the Collective Agreement …” (see paragraphs 20 and 17), which is what I believe I have done. I note as well the following commentary in S.E.I.U., Local 268:

19. Arbitrators are constantly required and expected to give meaning to contract provisions which are unclear, in situations which were not specifically foreseen by the contract negotiators. So long as this is done by application of principles reasonably drawn from the provisions of an agreement, and not be treating a subject not covered at all by the agreement, arbitral authority is not being improperly assumed.

49 Once more, I believe that I have sought the correct interpretation of clause 15.18 of the collective agreement in that spirit.

50 In Foote, a colleague adjudicator summarized case law that enjoined against interpretations that have the effect of adding a restriction that can or should only be negotiated by the parties at the bargaining table. The effect of my interpretation of clause 15.18 of the collective agreement might be viewed as restrictive compared to the objective now sought by the bargaining agent. However, I am unconvinced that my interpretation introduces a restriction at odds with what was intended by the parties when they negotiated clause 15.18. For reasons that are probably appropriate, I have no extrinsic evidence before me about what was actually discussed in those negotiations. However, I do have the parties’ agreed statement of facts about the nature of the exchange that took place and its replication in other collective agreements. I respectfully suggest that my interpretation seeks a meaning of clause 15.18 that is most consistent with those agreed facts as well as with relevant framework provisions of the collective agreement. In that sense, rather than imposing an unintended restriction, my interpretation tries to understand, from what the parties did agree to in their collective agreement, how they would have viewed the situation addressed in this case had they confronted it at that time. It remains possible that they might have taken a different approach, but in my view, the agreed facts and the framework of the collective agreement viewed in its entirety do not suggest on balance that a different result is more probable.

51 Klock and Julien mirror the concern expressed in Foote to avoid reading in a restrictive interpretation that should have been expressly included by the parties themselves. My comments in reaction to Foote apply equally to those decisions.

52 The bargaining agent argued case law about the threshold for finding an absurd result or an outcome that serves no possible labour relations purpose. I have not found the cited decisions helpful in this case because I make no finding that the bargaining agent’s reading of clause 15.18 of the collective agreement exceeds any such threshold. My disagreement with the bargaining agent’s position is based on a different analysis. I also do not attach any significance to the bargaining agent’s comments about the importance of its grant of exclusive representation rights under the Act and under the recognition provisions of the collective agreement. There is no question in this case of any derogation of representation rights. Moreover, in my view, the bargaining agent’s position that the interpretation that I have given to clause 15.18 could be valid only if the collective agreement contained an annex listing all other implicated collective agreements, signed by all relevant negotiators is not legally sound. At the very least, clause 14.02, as negotiated by the parties, obviates any argument that there is no possible interplay of provisions from different collective agreements in the absence of the signatures of all relevant negotiators.

53 In summary, I find that the bargaining agent has not proved that, on a balance of probabilities, the employer breached clause 15.18 of the collective agreement.

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

V. Order

55 The policy grievance is dismissed.

April 18, 2011.

Dan Butler,
adjudicator