FPSLREB Decisions

I. Individual grievances referred to adjudication

1 This case concerns three interpretation grievances involving article B3 (Overtime) and clause G3.01 (Functional Supervisory Differential) (FSD) of the collective agreement between the Canadian Food Inspection Agency (“the employer” or CFIA) and the Professional Institute of the Public Service of Canada (PIPSC), which expired September 30, 2007 (“the collective agreement”).

2 I shall first deal with Dr. Jerome Katchin’s overtime grievance (PSLRB File No. 566-32-1405).

3 The other two grievances are about the non-payment of the FSD (PSLRB File Nos. 566-32-1270 and 1271. The grievances are identical. The parties submitted evidence only for the grievance in PSLRB File No. 566-32-1270. The decision was to apply to both grievances. If the grievances were allowed, then the amount payable to each grievor would depend on the calculations applicable to each case.

II. Summary of the evidence

A. The overtime issue

1. For Dr. Katchin

4 When he filed his grievance, Dr. Katchin was a veterinarian officer, classified VM-01. He was working at the Maple Lodge slaughter plant in Brampton, Ontario. The Maple Lodge plant is a large chicken and fowl slaughter operation, with two shifts per day, and it processes 250 000 chickens daily. Dr. Katchin, a long-service employee, started with the CFIA’s predecessor on October 4, 1976 and worked for most of his career at the Maple Lodge plant until his retirement on May 30, 2007. He normally worked the second shift, which was from 12:30 to 20:30.

5 Dr. Katchin was an active member of the PIPSC throughout his career, with the exception of 1988 to 1998, when he also worked in his private veterinary practice. In December 2001, he renewed his stewardship with the PIPSC and assumed several national executive positions (on the NOSH Committee and the National Hygiene Committee and on the Staff Relations Committee at the Maple Lodge plant from 2001 to 2007).

6 Dr. Katchin explained in detail the numerous operations at the highly automated Maple Lodge plant as well as the close interactions between the inspectors and the veterinarians on the four different operating lines.

7 When the grievance was filed, the plant had about 1200 employees working the two shifts. Five of those employees were veterinarians. One was veterinarian inspector, classified VM-02, working the first shift, and the other four were VM-01 veterinarian officers rotating between the first and second shift. The veterinarian inspector is the veterinarian in charge (“the VIC”).

8 When the grievance was filed, the two-shift operation at the Maple Lodge plant consisted of a first shift from 04:00 to 12:00 and a second, from 12:30 to 20:30. Both shifts were 7.5 hours long with a 30-minute break. Those shifts have been in place, according to the witness, since before 2000.

9 In addition, it should be noted that overtime for the first shift is worked between 12:00 and 12:30 and that overtime for the second shift begins at 20:30.

10 In 2006, there were some 120 CFIA meat production plants in Canada. Of those 120 plants, a maximum of 20 were two-shift operations. All others were one-shift plants.

11 According to Dr. Katchin, the central issue in his overtime grievance is the employer’s practice of calculating overtime in 15-minute blocks.

12 The applicable overtime article of the collective agreement reads in part as follows:

ARTICLE B3

OVERTIME

B3.01 When an employee is required by the Employer to work overtime the employee shall be compensated as follows:

(a) on the employee’s normal work day, at the rate of time decimal five (1.5) for the first seven decimal five (7.5) overtime hours worked, and double (2) time thereafter;

…

B3.02 Calculation of Overtime

All calculations of overtime shall be based on each completed period of fifteen (15) minutes.

13 Before August 2006, the practice at the Maple Lodge plant was that in addition to payment for each block of 15 minutes of overtime, payment was also due if an employee worked an additional 1 to 14 minutes. In other words, in his example, when he once worked 16 minutes after the end of his regular shift, Dr. Katchin was paid at time and one-half for two full 15-minute blocks, even though he had worked only one complete 15-minute block.

14 Dr. Katchin’s evidence stated that the Maple Lodge plant practice had been in place for many years and that, when senior CFIA management discovered it in mid-2006, it advised all employees at every plant in Canada that the language of clause B3.02 of the collective agreement would be applied consistently without exception to all plants, effective August 2006, since they all had the same PIPSC master agreement. When the overtime grievance was filed, clauses B3.01 and B3.02 contractual language had been in the PIPSC collective agreement for years.

15 When the plant implemented the strict application of the collective agreement language, employees were no longer paid overtime for working less than 15 minutes of overtime.

16 Dr. Katchin testified that he then filed his grievance signed on September 12, 2006.

2. For the employer

17 The employer called one witness, Line Caissie, who joined the public service in 1972 and retired in 2008 after occupying several senior management positions at the CFIA. In the CFIA’s Human Resources department, she was a senior staff relations officer and was a member of the National Union-Management Consultation Committee in Ottawa.

18 Ms. Caissie also played a prominent role as the manager of collective bargaining and as the chief negotiator for the CFIA from 2002 through to her retirement in 2008. In addition to being the employer’s chief negotiator with the Professional Institute of the Public Service of Canada for the computer science and the scientific and analytical groups, she was the chief negotiator for the employer for the Veterinary Medicine (VM) collective agreement in this case (Exhibit U-1) and for the prior VM collective agreement.

19 On overtime, the employer’s evidence was that, once an employee has worked a regular shift of seven-and-a-half hours, overtime is paid as per clause B3.01 of the collective agreement, and the overtime is calculated as per clause B3.02. In other words, overtime is calculated in blocks of completed periods of 15 minutes.

20 In dismissing the grievance management stated that the grievor had not established that he had overtime blocks of fifteen minutes for which he had not been paid:

In essence, you are grieving that overtime was not paid to you in accordance with article B3.01 of the Veterinary Medicine (VM) collective agreement and you pointed to circumstances where you had claimed overtime for which you were not compensated because the overtime was not of a fifteen minute duration.

At the first and second levels of the grievance procedure, you were advised that management required examples of a situation when you were in fact aggrieved by the application of this article. The examples which you pointed to at the final level hearing involved time frames that occurred after the filing of your grievance. As such, you cannot be considered aggrieved as in order to file an individual grievance, an employee must demonstrate that they have in fact been aggrieved within the 35-day time frame immediately preceding the filing of a grievance, as outlined in the VM collective agreement. Given this, management cannot determine that you have in fact been aggrieved.

As per the grievance reply provided at the first level of the grievance response for grievance # 07-CFIA-ON-CE-12299, I note that you agreed to re-submit overtime forms to management which included the time period -covering some of the dates that you have noted here.

As you were advised in the responses provided to you at the first and second levels of the grievance procedure, Article B3.02 states that all “calculations of overtime shall be based on each completed period of fifteen minutes”. Employees are therefore paid overtime when they have worked a completed fifteen minute period of overtime.

Given this information, I cannot grant the corrective action that you seek and I am unable to consider your complaint.

B. The FSD issue

1. For the grievors

21 Tom Wright, classified VM-02, adduced the following evidence. At the time of the hearing, he was an 18-year veterinarian for the CFIA and an active member of the PIPSC. He had served the PIPSC in many capacities, including on the nine-member board of the VM Group Executive, which represents all the Canadian VMs within the CFIA, some 600 veterinarians.

22 Dr. Wright had a senior role in collective bargaining for the PIPSC and was the chair of the bargaining committee for the collective agreement (Exhibit U-1). Dr. Wright attended all negotiations that led to the collective agreement.

23 The language of clause G3.01 was new to the collective agreement. It replaced in part the old “lead hand” provisions of previous collective agreements. The word “functional” in article G3 was a request from the PIPSC to move veterinarians toward a more professional standing and away from the term “lead hand.”

24 According to Dr. Wright, the employer wanted to channel money issues to specific groups of veterinarians and not to all veterinarian groups, and the FSD was designed for that purpose.

25 Dr. Wright’s testimony is that the FSD was meant to compensate a VM-01 on a shift that did not have a VM-02 on duty. In the absence of a VM-02 on the second shift in a plant with two shifts (since a VM-02 always works the first shift), one of the VM-01s on the second shift is temporarily transferred part of the VM-02’s responsibilities. That allows him or her to meet all operational requirements and to fully comply with all meat and hygiene laws and regulations without interrupting production. It is a crucial responsibility. It is particularly important in two-shift slaughter plants, like Maple Lodge, which has four highly automated production lines. The VM-01’s have many responsibilities over inspectors working the production line.

26 According to Dr. Wright, the functional supervisory role was an extension of the first shift VM-02 responsibilities to a VM-01 on the shifts without a VM-02.

27 According to Dr. Wright, when the grievances were filed, a total of 120 meat production plants existed in Canada, of which a maximum of 20 had more than one shift. On that basis, the FSD was payable in a maximum of only 20 plants since the one-shift plants always had a VM-02 on duty.

28 Dr. Wright also testified that there was an ambiguity in the language of clause G3.01 of the collective agreement because it did not define evening and night shifts. However, Dr. Wright acknowledged that the PIPSC had requested definitions of evening and night shifts and admitted that the PIPSC’s demand had been unsuccessful.

29 Dr. Wright acknowledged that all the shift-work conditions in this case were and are covered by article B2 of the collective agreement, and specifically in clauses B2.01 to B2.12, inclusive.

30 In addition, Dr. Wright acknowledged and confirmed that the first shift at the Maple Lodge plant started at 04:00 and ended at noon and that the second shift started at 12:30 and ended at 20:30.

31 Finally, Dr. Wright testified that he became aware of the FSD situation at the plants as expressed in emails he exchanged with Dr. Dennis Barran on June 6, 2006 (Exhibit U-5).

32 Dr. Katchin and Dr. Piotrowski grieved in 2006 the fact that they were not receiving the FSD. Sometime later the employer paid the FSD to Dr. Katchin, but then asked for reimbursement in 2009, for an amount of $1256.44, which sum was repaid to the employer under protest.

33 Dr. Katchin testified that the VM-01 working the third production line on the second shift should be the one to receive the FSD because that was the best way to ensure an equitable distribution of the FSD among the four VM-01, as they worked on the third production line on a rotation basis.

2. For the employer

34 The employer’s uncontested evidence is that the PIPSC did not ask for a definition of either evening or night shifts before agreeing to the final language of the new FSD clause of the collective agreement (G3.01).

35 Mrs. Caissie produced in evidence Exhibit E-14, a document which both parties signed and that detailed the conditions under which the FSD was payable. It reads in part as follows:

Veterinary Medicine Group

On June 29, 2005, the Canadian Food Inspection Agency (CFIA) and the Professional Institute of the Public Service of Canada (PIPSC) agreed to introduce a Meat Hygiene Allowance (MHA), a one-time VM Provisory Payment, and a Functional Supervisory Differential (FSD).

The parties agreed to discuss any difficulties with the implementation of the above and have established the following principles.

…

ARTICLE 03

FUNCTIONAL SUPERVISORY DIFFERENTIAL

“G3.01      Effective January 1, 2006, when an employee classified at the VM-01 level is assigned functional supervisory responsibilities on the evening or night shift, during which time there is no VM-02 supervisor on site, that employee will receive a functional supervisory differential for all hours worked, including overtime hours, at the rate of 4% of his straight time hourly rate of pay.”

Note that several conditions must exist to receive this allowance.

-         must be classified VM-01

-         must be assigned functional supervisory duties

-         must be an evening or night shift

-         there is no VM-02 on site

This document does not form part of the collective agreement.

36 The FSD clause was subsequently included in the collective agreement. The new language of clause G3.01 reads as follows:

ARTICLE G3

FUNCTIONAL SUPERVISORY DIFFERENTIAL

G3.01      Effective January 1, 2006, when an employee classified at the VM-01 level is assigned functional supervisory responsibilities on the evening or night shift, during which time there is non [sic] VM-02 supervisor on site, that employee will receive a functional supervisory differential for all hours worked, including overtime hours, at the rate of 4% of his straight time hourly rate of pay.

III. Summary of the arguments

A. For the grievors

37 Counsel for the grievors presented arguments on two issues: the issue of overtime and the issue of the FSD.

1. Overtime grievance

38 The overtime issue is the following: Does a long-standing practice to pay any overtime estop the employer from applying clause B3.02 of the collective agreement?

39 First, counsel for the grievors stated that, when less than 15 minutes are worked (i.e., 1 to 14 minutes), it must be paid (rounding to 15 minutes) in addition to any completed 15-minute blocks of overtime, as per the past practice at the Maple Lodge plant. The employer is estopped from changing that practice.

40 Counsel for the grievors submitted that it would be unfair and inequitable to allow the employer to unilaterally change its practice at the plant at the midway point of the collective agreement.

41 Furthermore, counsel for the grievors insisted that the bargaining agent relied on that past practice to its detriment.

42 In support of this argument, counsel for the grievors submitted the following authorities and case law: Brown and Beatty, Canadian Labour Arbitration, 3rd ed. (at para 2:2200 to 2:2221, 3:4400 and 3:4430); Leitch Gold Mines Ltd. et al. v. Texas Gulf Sulphur Co. (Incorporated) et al. (1968), 3 D.L.R. (3d) 161; Excel Forest Products Ltd. v. Industrial Wood and Allied Workers of Canada (2001), 100 L.A.C. (4th) 16; Bunyan et al. v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 85; and Newfoundland and Labrador Association of Public and Private Employees v. Labrador School Board District No. 1, [2005] N.L.L.A.A. No. 11 (QL).

43 In addition, counsel for the grievors argued that the damages sought were continuing, from the time the grievance was filed to the date of the grievor’s retirement (September 12, 2006 to May 30, 2007).

44 Counsel for the grievors argued that, in the alternative, if I find that Dr. Katchin is not entitled to the overtime, then he should be paid straight time as per clause G1.02 of the collective agreement.

45 Finally, Dr. Katchin’s overtime claim amounted to 11.75 hours to be paid at the appropriate overtime rate or, in the alternative, at the appropriate straight-time rate.

2. The FSD

46 The FSD question is the following: Does clause G3.01 of the collective agreement entitle VM-01s at the Maple Lodge plant to the FSD?

47 Counsels argued that two parts of that clause have a latent ambiguity. What is meant by “… when an employee classified at the VM-01 level is assigned functional supervisory responsibilities …”? In addition, what is meant by “evening or night shift” since no definition of those terms is supplied? Counsels suggested that, to solve the latent ambiguities, I should accept extrinsic evidence, specifically the clause’s bargaining history, as an interpretation aid.

48 On the issue of introducing extrinsic evidence, I advised the parties that I would take the request under reserve, that I would listen to their respective positions on the issue and that I would decide its admission in my reasons.

49 The grievors’ position is that, in a two-shift plant, one VM-01 working the second shift without a VM-02 supervisor on site must always receive the FSD. According to counsel for the grievors, that is because there must be a veterinarian on site with full supervisory responsibilities at all times during operations to avoid any interruptions and to comply with all applicable legislation and regulations. Since a responsible VM-02 always supervises the first shift, no FSD is payable for that shift. However, on the second shift, a VM-01, in the absence of a VM-02, necessarily assumes the responsibility of the absent VM-02 for the duration of that shift and consequently must receive the FSD, in compliance with clause G3.01 of the collective agreement.

50 As to the issue of assignment, Dr. Katchin stated that a VM-01 working the third inspection line on the second shift should receive the FSD, which would allow for an equitable distribution of the FSD to each of the four VM-01s rotating on that line.

51 Finally, counsel for the grievors suggested that, if I concluded that there was no ambiguity in the language of clause G3.01 of the collective agreement, then all VM-01s working the second shift should be entitled to the FSD payment.

52 In conclusion, the remedy requested by Dr. Katchin for his FSD grievance is the amount of $1256.44, which he had been paid and then had to reimburse because the employer claimed that it had paid him in error. Also, the grievors’ counsel underlined in conclusion that the corrective action for Dr. Piotrowski on the FSD claim remained to be determined and that I should remain seized of the file until he was indemnified, if I decided in his favour.

B. For the employer

53 Counsel for the employer opened her argument by presenting an agreed statement of facts on four issues, which reads as follows:

1- The Maple Lodge Plant is a large 2 shift plant and has a large number of CFIA and plant employees.

2- Maple Lodge slaughter plant processes 250 000 chickens per day, five days per week.

3- The chief purpose and mission of CFIA at Maple Lodge and other CFIA establishments is to protect and preserve the health and safety of consumers.

4- The employer agrees with the bargaining agent that FSD article G3.01 is ambiguous and has a latent ambiguity.

54 Counsel for the employer submitted that, if something contradicts the law and its regulations, the law prevails, in spite of any evidence to the contrary.

55 In addition, counsel for the employer stated that Dr. Katchin, as an official veterinarian and inspector, can hold and detain, as per the Meat Inspection Regulations, 1990 (SOR/90-288) (“the Regulations”) (Exhibit E-6), an animal, meat product or “other thing.”

56 Counsel for the employer submitted that it is not compulsory for the employer to assign a VM-01 functional supervisory responsibilities in the absence of a VM-02. Furthermore, counsel for the employer stated that, when a VM-01 is assigned, he or she does not become the VIC. She added assigning the VM01 functional supervisory responsibilities does not mean that the VM-01 acts for the VM-02.

57 Counsel for the employer submitted that, in accordance with the Meat Inspection Act R.S.C. 1985, c.25 (1st Supp.) (MIA), and the Regulations,a VM-01 is also an inspector and has the authority to stop operations and or to address problems in a slaughter plant.

58 In addition, counsel for the employer stated that, in clause G3.01 of the collective agreement, whether the FSD is “assigned” is at the employer’s discretion. Counsel for the employer said that is “assigned” means more responsibilities than those found in the VM-01 work description. “Assigned” defined broadly suggests that the VM-01s responsibilities are not all contained in the work description (Exhibit E-1).

59 Furthermore, counsel for the employer stated that not all VM-01s covered by the collective agreement work in positions described by the VM-01 work description.

60 Finally, counsel for the employer argued that, because the grievances are from slaughterhouse plants, my decision must be limited to those VM-01s working in slaughter plants.

61 Both parties suggested in the agreed joint statement of facts that the language of clause G3.01 of the collective agreement was ambiguous and that it contained latent ambiguities. They requested that the adjudicator accept their bargaining history as extrinsic evidence and as an interpretation aid.

62 Ms. Caissie’s testimony established that the evening and night shifts at the signing of the collective agreement were undefined and that they remained as they were in the previous collective agreement. The first shift starts at 04:00 and ends at 12:00 and the second shift starts at 12:30 and ends at 20:30. Also clear is that a VM-02 always works the first shift and that no FSD is paid on that shift. Consequently, at the Maple Lodge plant, the FSD can be paid only on the second shift. Finally, the clear and unambiguous language of clause G3.01 of the collective agreement is that the FSD applies to only one VM-01 on the second shift.

63 Briefly, the employer’s overtime arguments were the following:

• The adjudicator does not have jurisdiction because, when Dr. Katchin filed his grievance, he had not been personally aggrieved and had not been denied compensation.

• In cross-examination, Dr. Katchin admitted that he did not make a claim for overtime and that he was unable to provide evidence that he was aggrieved and that he had been denied overtime from September 12, 2006 to the date of the hearing.

• An examination of Dr. Katchin’s grievance (Exhibit U-23), the grievance replies (Exhibits U-23(a) to (c) Exhibits E-8, E-9 and E-24), the overtime statement filed under protest and without prejudice, and Exhibits E-10 to E-12 revealed that all incidents claimed in the context of the grievance occurred after it was filed. Consequently, the employer submitted that the grievance is untimely in addition to Dr. Katchin adducing no evidence that he was aggrieved.

64 Finally, in argument, counsel for the employer addressed two issues raised by counsel for the grievors, estoppel and remedy.

1. Estoppel

65 On the issue of promissory estoppel counsel for the employer relied on Pronovost v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 93.

66 Counsel for the employer established in examination-in-chief and confirmed in cross-examination that the practice of calculating overtime to include all minutes worked at the Maple Lodge plant was stopped when senior management discovered it. In spring 2006, Dr. Barran advised Dr. Katchin that their method of calculating overtime would end. In fact, after appropriate notice was given to all concerned, the isolated practice that had developed at the Maple Lodge plant was discontinued, and the collective agreement language applicable to all CFIA plants was applied consistently, without exception. At that time, Dr. Barran and Dr. Katchin initiated another way of applying clause B3.02 at the Maple Lodge plant that lasted only a few weeks. It was discontinued because it was also inconsistent with the collective agreement language applicable to all CFIA plants.

67 Counsel for the employer concluded that the past practice could not give rise to estoppel.

2. Remedy

68 Dr. Katchin’s position, in both the overtime and the FSD grievance, is that the grievances were of a recurring nature and that both grievors should be put into the positions in which they would have been had the collective agreement not been breached. Counsel for the grievors also submitted that the damages should cover the time from the filings of the grievances to the date on which Dr. Katchin left the CFIA, May 30, 2007, and for Dr. Piotrowski, to the date of his departure from the plant.

69 Counsel for the employer submitted that Dr. Piotrowski did not testify and that he did not present any evidence about the FSD or about the amount of hours he would be owed, should I find his grievance founded. Moreover, no remedy can be ordered since no evidence was adduced of any breach of the FSD clause of the collective agreement.

70 Counsel for the grievors claimed a remedy for Dr. Katchin in the form of the FSD from September 12, 2006 until May 2007. Counsel for the employer submitted that, if I allowed Dr. Katchin’s FSD grievance, I would be limited to awarding the grievor’s request (Exhibit U-10). On the FSD, counsel for the grievors adduced Exhibit U-13, which the details the employer’s recovery of $1256.44 from Dr. Katchin.

71 Finally, counsel for the employer submitted that Dr. Katchin should have grieved the employer’s recovery of the FSD. In addition, counsel for the employer submitted that I do not have jurisdiction to order a remedy for events that occurred on dates after the grievance was filed.

72 In support of its position, counsel for the employer adduced the following authorities and jurisprudence: Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.); Motor Transport Industrial Relations Bureau of Ontario v. General Truck Drivers’ Union, Local 938 (1973), 4 L.A.C. (2d) 154; Consolidated Aviation Fueling of Toronto Ltd. v. International Association of Machinists (1972), 1 L.A.C. (2d) 377; Winnipeg (City) v. Canadian Union of Public Employees, Local 500, [2003] M.G.A.D. No. 45 (QL); Cape Breton Regional Hospital/Sydney City Hospital v. C.U.P.E., Local 1613 (1994), 43 L.A.C. (4th) 220; Pronovost; Reid v. Treasury Board (Department of National Defence), PSSRB File No. 166-02-12631 (19820722); Bailey et al. v. Treasury Board (Transport Canada - Canadian Coast Guard), PSSRB File Nos. 166-02-17350 to 17362 (19880907); Toronto (City) v. Canadian Union of Public Employees, Local 416, [2008] O.L.A.A. No. 376 (QL); Canadian National Railways v. Canadian Pacific Ltd., [1978] B.C.J. No. 1298 (B.C.C.A.) (QL); Piotrowski v. Canadian Food Inspection Agency, 2001 PSSRB 94; Piotrowski v. Attorney General of Canada, 2003 FCT 757; sections 208 and 209 of the Public Service Labour Relations Act (PSLRA).

C. Grievors’ reply

73 I will summarize the grievors’ reply to the six issues raised in employer’s arguments.

74 The first issue is the MIA. Counsel for the grievors said that, under the MIA and its regulations, not everyone has the power to shut down a plant. Sections 29.2 and 29.3 of the Regulations provide that the CFIA president has the power to suspend or cancel the license of a registered establishment (such as a plant) if it has contravened the MIA, the Regulations or the Manual of Procedures. In addition, the VIC in an establishment has the delegated authority and responsibility to ensure compliance with the applicable legislation and to ensure that healthy and wholesome meat products are available for domestic and international trade and are approved and passed.

75 The relevance of that issue, according to counsel for the grievors, is the heart of the FSD’s purpose, which is to make sure that someone is responsible when the VIC is not on site. Counsel for the grievors submitted that, if the VIC were not on site (or no one was acting as a VIC under clause G1.08 of the collective agreement or assigned functional supervisory responsibility under clause G3.01), the establishment would find itself without someone responsible for deciding to stop operations if necessary and would therefore not be in compliance with the Manual of Procedures. Consequently, the position of the grievors’ counsel is that only the VIC or a VM-01 assigned functional supervisory responsibilities could stop operations.

76 The second issue is whether I should limit my findings to slaughterhouses. Counsel for the grievors submitted that the parties have agreed that there is a latent ambiguity in the language of clause G3.01 of the collective agreement and that, once that issue is resolved by examining the master agreement, slaughterhouses and other CFIA plants must be considered based on the evidence. Therefore, my decision should not be limited to slaughter plants.

77 The third issue is about the definitions of “evening” and “night” shifts. Counsel for the grievors submitted that problems could arise in the FSD if those terms are not defined. The parties acknowledged that the PIPSC raised the issue of the definitions of evening and night shifts early in the negotiations and then withdrew it, such that the collective agreement does not define evening and night shifts. Again, I will address that issue in my reasons.

78 The fourth issue is Dr. Katchin’s overtime grievance. Counsel for the grievors submitted that the employer’s argument that the grievance was premature depends on the proposition that the grievor was not aggrieved until he actually claimed and was denied overtime. The employer’s instructions of August 14, 2006, according to counsel for the grievors, were not simply prospective; they created a live issue of interpretation as of that date. In addition, counsel for the grievors submitted that paragraph 208(1)(a) of the PSLRA does not simply specify that an employee has to feel aggrieved solely by the application of a collective agreement; he or she can also be aggrieved by its interpretation.

79 The fifth issue covers estoppel and overtime. Counsel for the grievors grounds its estoppel argument on the past practice of 20 years at the Maple Lodge plant that was applied to all VM-01s. Counsel for the grievors also submitted that Dr. Katchin was aware that the same overtime practice was used in over a dozen plants.

80 Counsel for the grievors submitted that the employer’s long-standing practice was to pay overtime whether or not an employee worked a full 15-minute block. From 1987 onward, for at least four if not more collective agreements, the employer was clearly committed to that practice and had in effect renounced its right to apply the strict wording of the collective agreement.

81 In addition, counsel for the grievors submitted that the employer knew of the long-standing practice and that its reversion to strict interpretation indicated its awareness and that it wanted the practice to stop.

82 The final issue is damages. Counsel for the grievors submitted that I should adopt the same approach as in the Hotel Dieu case. Counsel for the grievors submitted that all grievances were sufficiently broad to include the period after they were filed.

83 In closing, counsel for the grievors submitted that the purpose of a remedy is to put the grievors in the positions they would have been in had the employer properly interpreted the collective agreement. Furthermore, counsel for the grievors submitted that, even though the exact amount may be difficult to discern, the adjudicator has the responsibility to make the grievors whole to the best of his ability.

84 Finally, counsel for the grievors submitted that evidence was adduced upon which the adjudicator could make findings of damages. Counsel for the grievors requested that I remain seized if the parties are not able to reach an agreement.

IV. Reasons

A. Overtime issue

85 The overtime grievance for Dr. Katchin is denied for the following reasons.

86 Dr. Katchin is relying on a long-standing practice at the Maple Lodge plant.

87 However, Dr. Katchin’s evidence (Exhibit U-19) was that clause 9.02 of the master agreement has language identical to that of clause B3.02 of the collective agreement, which states that “[a]ll calculations of overtime shall be based on each completed period of fifteen (15) minutes.”

88 Dr. Wright also testified that, when the grievance was filed, 120 CFIA meat production plants existed in Canada. Each had this same overtime language in their respective collective agreements.

89 Dr. Katchin’s evidence is that he worked most of his career with the CFIA at the Maple Lodge plant.

90 Dr. Katchin testified that the method of calculating overtime at the Maple Lodge plant to include periods of less than 15 minutes was also used at four other CFIA plants. However, I was not presented with any evidence of such a practice at any other CFIA plant.

91 Counsel for the grievors argued that it was unfair and inequitable to allow the CFIA to unilaterally change the overtime practice at the Maple Lodge plant at mid-point of the collective agreement. Furthermore, the grievors’ counsel submitted that the grievors had relied on the overtime practice at the Maple Lodge plant to their detriment and that the employer should have raised the issue earlier. In other words, counsel for the grievors submitted that the employer is estopped under the collective agreement.

92 I disagree with the argument of counsel for the grievors based on promissory estoppel. The uncontradicted evidence is that there were about 120 CFIA plants throughout Canada, that the PIPSC represented veterinarians in each plant and that each plant had the same collective agreement language about calculating overtime. That language specified that all overtime calculations were to be based on each completed period of 15 minutes of overtime work.

93 Not only is the language clear and obligatory, I have to believe that the PIPSC knew or had to know that the identical language in all its collective agreements with the CFIA should not have been interpreted differently for the Maple Lodge plant. The overtime language in clause B3.02 of the collective agreement was not new. It had been in place for many years. When the CFIA senior management discovered that the language was being interpreted differently at the Maple Lodge plant, it immediately advised all its employees in the plants that the long-standing language would be interpreted consistently in all plants as of August 21, 2006, with no exceptions. I did not hear any evidence that the employees at the Maple Lodge plant were asked to reimburse monies that had been paid to them due to incorrect overtime calculations.

94 On the issue of promissory estoppel, the employer relied on Pronovost.

95 The doctrine of estoppel is described as follows in Brown and Beatty, Canadian Labour Arbitration, Third Edition, at para 2:2211:

…

The principal, as I understand it, is that where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him…

…

96 The Federal Court of Appeal commented on that doctrine as follows in Canada (Treasury Board) v. Canadian Air Traffic Control Association[1984] 1 F.C. 1081 (C.A.):

…

While the doctrine of promissory estoppel is far from clear it seems established that there cannot be such an estoppel in the absence of a promise, by words on by conduct, the effect of which is clear and unambiguous … Moreover, it seems established, also, that the doctrine of promissory estoppel, in addition to a clear and unambiguous promise, requires that such a promise must have led the promisee to act differently from what he would otherwise have done…

…

97 The Federal Court stated as follows in Dubé v. Canada (Attorney General), 2006 FC 796: “Evidence of a commitment is critical in establishing the validity of an allegation based on the principle of promissory estoppel.”

98 The evidence in this case was that the employer did not make any promise or assurance by its words or conduct to the local bargaining unit or the PIPSC that was intended to affect the legal relations between them and to be acted upon accordingly.

99 Furthermore, there is no evidence before me that the employer made any commitment whatsoever to the PIPSC.

100 The context of the language in question, for the issue of promissory estoppel, in clause B3.02 of the collective agreement about calculating overtime is important. The language is not only clear and unambiguous, but it has been in place for many years. When the grievance was filed, that identical language was also part of 120 collective agreements between the PIPSC and the employer at 120 plants throughout Canada.

101 Furthermore, there is no evidence before me that a promise was made to the PIPSC in this case that the practice would continue in the future. On the contrary, when the employer discovered the non-compliant practice of calculating overtime at the Maple Lodge plant, it immediately put into motion corrective measures to end it and advised all concerned that, not only was the practice stopped, but all the employer’s plants without exception would comply with the long-standing clear and unambiguous language of clause B3.02 of the collective agreement.

102 In the absence of a promise, implicit or explicit, the effect of which is clear and unambiguous, the doctrine of estoppel cannot be applied and used as the grounds for a grievance. As mentioned earlier, the Federal Court of Appeal made that decision in Canadian Air Traffic Control Association, and the Federal Court reiterated that point in Dubé.

B. The FSD

103 The FSD grievances are allowed for the following reasons.

104 The central thrust of my decision is based on the language of clause G3.01 of the collective agreement (Exhibit U-1) and the work description of a veterinary officer, classified VM-01, at the Maple Lodge plant.

105 In a nutshell, a veterinary officer is automatically assigned functional supervisory responsibilities when working the second shift in a two-shift plant when no veterinarian classified VM-02 is in charge and on site.

106 That flows from the following evidence:

• At the time of the FSD grievances, June 22, 2006, the two shifts at the plant were from 04:00 to 12:00 and from 12:30 to 20:30. That shift schedule had been in place since before 2000.

• In a two-shift operation, the VIC always works the first shift because he or she must work closely with the employer in addition to performing his or her normal VIC duties. It necessarily follows that, on the first shift, since the VIC is on site, there is no need for a functional supervisor. Therefore, a need to fill a functional supervisory responsibility, which gives rise to the FSD, can occur only on the second shift.

• In light of clause G3.01 of the collective agreement and to comply with the applicable legislation and regulations, a veterinarian officer working the second shift must be assigned VIC responsibilities. Those are delegated responsibilities given to the veterinarian officer (as an inspector) by the president of the CFIA under subsection 13(3) of the Canadian Food Inspection Agency Act, S.C. 1997, c.6 (CFIAA). The result is that the veterinarian officer who has been delegated inspection enforcement responsibilities does not need to be reassigned when he or she acts as an inspector on the second shift when the VIC is not on site.

107 At the beginnings of their arguments, counsel for both parties advised me that they had agreed on a few statements of facts, one of which was that clause G3.01 of the collective agreement had two ambiguities and that they would introduce extrinsic evidence based on their negotiation history as an interpretation aid.

108 On the issue of extrinsic evidence, I informed the parties that I would hear their evidence but that I would advise them in my reasons of its relevancy and weight.

109 The first issue of ambiguity for the employer was the need for an assignment every time functional supervisory responsibility was delegated to a VM-01. The second issue of ambiguity was that counsel for the grievors insisted that the language of clause G3.01 of the collective agreement required a definition of “evening” and “night” shifts.

110 My ruling on the issue of ambiguity and whether extrinsic evidence is required is that, based on the evidence before me, there is no ambiguity in the language of clause G3.01 of the collective agreement and therefore no need for extrinsic evidence, for the following reasons.

111 I understand clause G3.01 to mean that the FSD is paid to the VM-01 who fulfills the functional supervisory duties in the absence of the VM-02. The bargaining agent has established to my satisfaction that on the second shift, where the VM-02 is absent, one VM-01 will assume those duties. The employer opposes that there is no assignment. I conclude that there is a tacit assignment, in order to comply with the applicable legislation and regulations. This also appears to have been the employer’s understanding during the period when the FSD was paid to Dr. Katchin.

112 As to the ambiguity caused by the use of “evening or night shift”, I believe what is meant is the second shift, which is confirmed by the phrase that follows immediately, “during which time there is no VM-02 supervisor on site”.

113 When a veterinarian officer (VM-01) performs veterinarian inspector (VM-02) responsibilities on the second shift, he or she performs a substantial part of the veterinarian inspector responsibilities for the entire second shift, in addition to his or her veterinarian officer responsibilities, and he or she must be paid the FSD provided in clause G3.01 of the collective agreement.

114 An examination of the French version of clause G3.01 of the collective agreement reveals and clearly confirms two critical features, namely, the delegated authority of the assignment of the veterinarian inspector’s (VM-02) responsibilities to the veterinarian officer (VM-01) and the fact that the FSD is payable to one veterinarian officer per second shift and not to all veterinarian officers working on the four different meat production lines at Maple Lodge plant.

115 I will retain jurisdiction for a reasonable period, not to exceed 60 days, to allow the parties to examine and determine the amounts due both grievors. Should they not be able to determine the amounts due, I will then ask the parties to submit to me their respective positions on the remedy, and I will make a final ruling.

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

V. Order

117 The overtime grievance is denied (PSLRB File No. 566-32-1405).

118 The FSD grievances are allowed (PSLRB File Nos. 566-32-1270 and 1271).

May 13, 2011.

Roger Beaulieu,
adjudicator