FPSLREB Decisions

I. Individual grievance referred to adjudication

1 This decision concerns a preliminary objection to jurisdiction raised by the Treasury Board (“the employer”) about five grievances concerning retroactive pay, which arose from a memorandum of settlement.

2 The grievors are employed by the Department of Transport as aircraft inspectors and are classified AO-CAI. At the time the grievances were filed, the grievors were covered by the collective agreement between the employer and the Canadian Federal Pilots Association (CFPA) for the Aircraft Operations Group; expiry date, January 25, 2008 (“the collective agreement”).

3 These five grievances were not originally scheduled to be heard together at adjudication. However, they all claim retroactive pay arising from the application and implementation of a memorandum of settlement. The grievances of Calvin Winter, Paul Robert Risk and Harry Wray are identical and claim as follows:

Transport Canada published a settlement agreement (attached) and the agreement stated that Transport Canada has agreed to provide retroactive pay to employees who performed these duties in the past for the periods they did so.

I have performed the duties as a 705 Inspector as per Treasury Board Classification Standards.

4 The corrective action requested was to receive the retroactive pay, which the grievors also wanted to be pensionable.

5 The grievances of Clifford Miskey and Edward H. Rinn also allege that that they do not have current and up-to-date job descriptions, which they requested as part of the corrective action.

6 Although those requests for current job descriptions may raise factual questions specific to those grievors, the issue of an entitlement to retroactive pay arising from a memorandum of settlement relies on facts common to all five grievances. For that reason, the parties requested to have that common issue heard as a single matter. Furthermore, the employer raised a preliminary objection to jurisdiction relating to the claims for retroactive pay, on the grounds that those claims did not fall within the bounds of subsection 209(1) of the Public Service Labour Relations Act (PSLRA). Given the circumstances, the parties agreed that the hearing scheduled for May 3 and 4, 2012 would deal solely with the preliminary objection to jurisdiction. If, following the decision on the preliminary objection, outstanding issues remained between the parties, a final determination would be made as to whether those issues would still be consolidated in a single hearing or whether the grievances would be heard individually.

II. Summary of the evidence

7 The parties prepared an agreed statement of facts with seven attached documents. In addition, Daniel Slunder, CFPA National Chair, testified on behalf of the grievors and submitted into evidence 10 documents, identified as Exhibits E-2 to E-11. Other than to Exhibit E-2, the employer objected to the evidence and exhibits presented by Mr. Slunder on the grounds that they were not relevant to the issue at hand. The evidence was accepted, subject to my ruling on the objection in this decision. For the record, the employer’s objection to the introduction of this evidence is dismissed. The evidence presented was most certainly relevant to the case that the grievors wished to make.

8 The agreed statement of facts (Exhibit E-1) provides as follows:

The Grievors, Calvin Winter, Clifford Miskey, Harry Wray, Paul Risk and Edward Rinn (the “Grievors”) and Treasury Board (Transport Canada) agree, for the purposes of this adjudication:

1. that the facts set forth herein are admitted as proven as if those facts had been established in evidence, subject to their relevance to the issues and to their weight being determined by the Adjudicator;
2. that the documents attached as exhibits hereto are admitted as proven, subject to their relevance to the issues herein and to their weight being determined by the Adjudicator;
3. that each exhibit hereto is a true copy of a document, the original of which was printed, written, signed or executed as it purports to have been, and which was sent and received, as the case may be, by the persons indicated thereon or therein, at or about the dates indicated.

1. In or about April of 2008, an unfair labour practice complaint was filed by the Canadian Federal Pilots Association (“CFPA” or the “Union”), bargaining agent for the Grievors, alleging a breach of the duty to bargain in good faith and a breach of the statutory freeze provisions of the Public Service Labour Relations Act, S.C. 2003, c. 22. A copy of the complaint, dated April 24, 2008, is attached hereto as Exhibit “A.”
2. The complaint had been filed following Transport Canada’s offer of term employment positions to some twenty two (22) AO-CAI-02 pilots, at a higher classification level (AO-CAI-03) and with retroactive pay, who were assigned on a full-time basis as either a line inspector or Principal Operations Inspector (POI) for Commercial and Business Air Operations with “large aircraft” over a certain weight class. The parties were engaged in collective bargaining at the time of the proposed appointments.
3. On or about July 16, 2008, a confidential Terms of Settlement (“MOS”) was executed between the parties to the unfair labour practice complaint. The MOS settled the issues for the twenty two (22) heavy aircraft pilot inspectors initially selected by the employer for the higher classification, and added three additional names. All twenty five (25) were collectively identified at Schedule A. In addition, twelve (12) additional heavy aircraft pilot inspectors, who had provided past service, were identified at Schedule B. The MOS also included, at Schedule C, an agreed public notification directed to all members of the Aircraft Operations (“AO”) Group respecting the confidential resolution of the complaint. A copy of the MOS, dated July 16, 2008, together with its attached Schedules, is attached hereto as Exhibit “B.” The Adjudicator, in receiving this Agreed Statement of Facts, and in preparing any reported decision, is asked to respect the shared intention of the parties to have the operative provisions of the MOS remain confidential.
4. Among other terms of settlement, the public notification advised all members of the AO Group that Transport Canada had committed to appointing 25 employees to indeterminate AO-CAI-03 positions and to provide retroactive pay to these appointees from the date of the change in duties. The notification advised that Transport Canada had additionally agreed “to provide retroactive pay to employees who performed these duties in the past for the periods they did so.”
5. Upon receipt of the Notice, each of the Grievors presented individual grievances on the ground that they too had performed the duties associated with “large aircraft,” for which they had not been compensated. At the time of filing, each of the Grievors occupied a position classified at the AO‑CAI-02 Group and Level. Attached hereto as Exhibits “C,” “D,” “E,” “F” and “G” are copies of the individual grievances.
6. The agreement of the parties as expressed herein is made without prejudice to the right of either party to seek to introduce additional evidence at the hearing, and in the usual manner, and equally subject to the right of either party to object to the admissibility of such evidence pursuant to the applicable jurisprudence and practice of adjudicators respecting the admissibility of evidence at adjudication proceedings.

…

9 Mr. Slunder testified that he has been the CFPA National Chair since July 2009 and that he therefore has access to all the CFPA’s files and records. Exhibits E-2 through E-11 are all documents taken from the files held by the CFPA. He explained that two settlements were signed in relation to an unfair labour practice complaint. Following the original settlement (Exhibit E-1, Tab B), he signed a second memorandum of settlement (Exhibit E-2) that was intended to resolve some outstanding issues, such as overtime entitlement, which had been sent back to mediation. The second settlement added some employees to the list of entitled employees under the first settlement, among other things. He stated that the employer acknowledged that some individuals might have been missed and brought forward additional names. He noted that one of the employer representatives who signed the original memorandum of settlement also communicated with him by email to advise him that the employer was considering adding names to the list of employees entitled to benefit under the settlement (Exhibit E-11).

III. Summary of the arguments

A. For the employer

10 The employer argued that these grievances seek to enforce a contractual obligation arising not out of the collective agreement but rather from a memorandum of settlement. Although Mr. Miskey and Mr. Rinn identified collective agreement provisions in relation to their claims for current and accurate job descriptions, not one of the grievors identified a collective agreement provision in relation to their claims for retroactive pay. Despite that fact, they chose to refer their grievances to adjudication under paragraph 209(1)(a) of the PSLRA, and they are restricted by that choice.

11 It is clear from the facts in this case that these grievances arose because the grievors did not see their names on the list of employees who benefitted from the agreement negotiated by the employer and the CFPA to resolve an outstanding unfair labour practice complaint. The CFPA filed its complaint in relation to allegations of bad faith bargaining and alleged violations of the bargaining-freeze provisions under paragraphs 190(1)(b) and (c) of the PSLRA, which do not give rise to individual rights. The rights detailed by the complaint were strictly union rights. Furthermore, the settlement neither amended nor was incorporated into the collective agreement.

12 Citing Pelletier-Chabot and Perron-Croteau v. Treasury Board (Public Archives of Canada), PSSRB File Nos. 166-02-11948 and 11949 (19820713), and MacLean et al. v. Treasury Board (National Gallery of Canada), PSSRB File Nos. 166-02-23640 to 23646 (19930720), the employer contended that Public Service Labour Relations Board (PSLRB) adjudicators do not have the jurisdiction to enforce settlements that are not part of a collective agreement enforceable under the PSLRA.

13 The employer distinguished the facts of these grievances from those considered in Amos v. Deputy Head (Department of Public Works and Government Services), 2008 PSLRB 74 (upheld in 2011 FCA 38, reversing 2009 FC 1181), and Thom v. Treasury Board (Department of Fisheries and Oceans), 2012 PSLRB 34. The grievors in those cases sought to enforce settlements negotiated for their grievances and argued that the PSLRB continued to be seized of the grievances because the employers had not fulfilled obligations under their respective settlement agreements. In these grievances, the grievors were not parties to the settlement that they are seeking to enforce but were third parties to it.

14 The employer noted that these grievances were filed during the period between the first and the second settlement agreements and that the second agreement was intended to resolve issues that remained outstanding after the first agreement was signed. The third paragraph of the second agreement states that that agreement constitutes a full and final resolution of all outstanding issues. The grievors’ issues could have been resolved then, but their names are not on the list of additional employees to benefit from the agreement.

15 The grievors might argue that the first settlement agreement of 2008 was not final and binding and that, therefore, the employer is estopped from raising an objection, but that settlement was confirmed and modified by the second settlement agreement in 2009. Following the second settlement agreement, the original complaint was withdrawn.

16 For all of those reasons, the employer argued that the grievances as they relate to retroactive pay arising from the settlement should be dismissed for lack of jurisdiction.

B. For the grievors

17 The grievors argued that their claim is contractual, arising from the settlement that resolved the unfair labour practice complaint. They stated that the settlement contemplated the payment of claims for employees who were not explicitly listed in the attached schedule. In particular, the grievors noted that the notice of the settlement that was communicated to employees made it clear that employees who had performed some of the relevant duties in the past would be entitled to benefit from the settlement. Furthermore, the employer’s ongoing conduct demonstrated that the list of names of employees in the settlement was not final because names continued to be added even after the second agreement was signed.

18 The grievors argued that a PSLRB adjudicator has the jurisdiction to determine whether a settlement agreement is final and binding and to determine whether one of the parties failed to comply with its terms. Citing Amos and Thom, the grievors argued that the remedial authority of adjudicators had been expanded by section 236 of the PSLRA and that, consistent with the explicit purpose of the PSLRA to foster harmonious labour relations, emphasis is now placed on the voluntary resolution of disputes. Essential to that task are processes to enforce and implement settlement agreements. In Amos, the Federal Court of Appeal considered that it would be unfair and inefficient to require a grievor to file a new grievance to enforce an obligation under a settlement and that, furthermore, such a requirement would not be consistent with the goal of the legislation to promote the efficient resolution of labour disputes. The grievors submitted that it is important that adjudicators take a contextual approach to determining whether a settlement has been executed.

19 The grievors also argued that, in the alternative, the doctrine of equitable estoppel prevented the employer from treating the list of eligible employees as closed. The employer continued to add names to the list even after the second settlement had been executed and the unfair labour practice complaint withdrawn. The grievors contended that those additions gave rise to a reasonable expectation that the process for determining eligibility was ongoing.

C. Employer’s rebuttal

20 The employer reiterated that the grievors were not parties to the settlement that they are attempting to enforce. Further, the matter that gave rise to the settlement was an unfair labour practice complaint that would be heard by a PSLRB Board member, not an adjudicator. Given that fact, an adjudicator would not be able to deal with an issue relating to the settlement of such a complaint.

IV. Reasons

21 This decision deals solely with the employer’s preliminary objection to my jurisdiction on the grounds that the five grievors’ claims for retroactive pay, arising from a settlement agreement, are not adjudicable. Although Mr. Miskey and Mr. Rinn also alleged that they do not have current and up-to-date job descriptions, the parties agreed that that issue will be addressed separately, at another time.

22 PSLRB adjudicators derive their jurisdiction solely from the PSLRA. There is no inherent jurisdiction. As applied to individual grievances, the PSLRA limits jurisdiction to those matters set out in subsection 209(1). To be adjudicable, a grievance must be about the interpretation or application of a collective agreement provision as applied to an individual employee (paragraph 209(1)(a)), a disciplinary action resulting in a termination of employment, suspension, demotion or financial penalty (paragraph 209(1)(b)), or for employees in the core public administration, a demotion or termination of employment for unsatisfactory work performance or other non‑disciplinary reasons not covered by other legislation or for a non-consensual deployment (paragraph 209(1)(c)). Those are the boundaries of an adjudicator’s jurisdiction as it applies to individual grievances.

23 The grievances were referred to adjudication using Form 20, which is the required form for grievances about an alleged breach of the collective agreement. However, neither the grievances nor the Form 20 identified a particular provision of the collective agreement at issue. There is no doubt that, on their faces, the claims for retroactive pay made in these grievances do not refer to a breach of the collective agreement but rather solely to an entitlement arising from a settlement reached between the CFPA and the employer for an unfair labour practice complaint. Therefore, on their faces, these grievances do not comply with paragraph 209(1)(a) of the PSLRA.

24 The grievors argued that, despite the fact that they do not allege a breach of the collective agreement, the grievances are adjudicable. They base that assertion on their belief that, following Amos, adjudicators have not only the power but also the obligation to interpret and enforce settlements reached for matters that come before the PSLRB. Citing both Amos and Thom as examples of cases in which adjudicators ruled that they have the jurisdiction to interpret and enforce settlement agreements, the grievors argued that I also have the jurisdiction to interpret and apply the settlement agreement reached between the CFPA and employer on the unfair labour practice complaint, as it applied to them.

25 However, the grievors’ arguments ignore a fundamental fact. In both Amos and Thom, the issue of the adjudicator’s jurisdiction arose in the context of the grievors’ requests to reopen their original grievances following what they believed was the failure of the respective employers to honour their settlement agreements. That is not so in this case. These grievors are claiming the benefit of a settlement that was reached in a completely different case. They are not attempting to reopen the unfair labour practice complaint that gave rise to the settlement and could not do so, as they were not parties to that complaint or to its settlement.

26 The grievors argued that the emphasis on voluntary dispute resolution in the PSLRA mandated adjudicators to interpret and enforce settlements. They suggested that, if an adjudicator could not interpret and enforce a settlement, the only recourse grievors would have would be to file more grievances, which would not be adjudicable. That, they argued, would be unconscionable. They noted that the Federal Court of Appeal in Amos dismissed that notion as unacceptable. And yet, it seems to me, that these grievances are exactly that. They are new and separate grievances attempting to enforce a settlement. They are not applications to reopen an existing grievance.  

27 I believe that it is also worth noting that the settlement in question was reopened by the parties to it. The CFPA and the employer not only reopened the settlement to deal with some outstanding issues, they also negotiated a second settlement to resolve those issues. In the course of that negotiation, new names were added to the list of eligible employees. That fact is a clear indicator of the parties to the settlement and it demonstrates the process that should have been followed on behalf of these grievors.

28 In my view, the argument advanced by the grievors based on Amos and Thom would expand the jurisdiction of an adjudicator beyond the boundaries of subsection 209(1) of the PSLRA. I do not believe that that is the effect of those decisions. They held, in effect, that an adjudicator was not functus officio once a settlement was reached but retained jurisdiction over the original grievance to determine whether the settlement had been complied with and to make whatever order would be appropriate in the circumstances.

29 The grievors also argued that the employer’s efforts to continue to compensate eligible employees even after the second settlement was executed and the complaint withdrawn operated as a bar or an estoppel that, in effect, prevented the employer from making an objection to jurisdiction. That argument presumes that the parties can give an adjudicator jurisdiction, but as I have already noted, adjudicators derive their jurisdiction from the legislation, not the parties. The argument fails for that reason. These grievances do not fall within the bounds of paragraph 209(1)(a) of the PSLRA, whether or not the employer objected to  my jurisdiction. Therefore, I cannot take jurisdiction.

30 I find, for all these reasons, that I do not have jurisdiction to hear these grievances as they relate to claims for retroactive pay based on a settlement agreement.

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

V. Order

32 The employer’s preliminary objection to jurisdiction is upheld.

33 The grievances of Paul Robert Risk, Harry Wray and Calvin Winter are dismissed.

34 The grievances of Edward H. Rinn and Clifford Miskey are dismissed as they relate to their claims for retroactive pay. The parties have agreed that the remaining job description issues shall be scheduled in consultation with the PSLRB’s Registry Office.

June 1, 2012.

Kate Rogers,
adjudicator