FPSLREB Decisions

I. Individual grievances referred to adjudication

1 Gordon Manuel and Michael Reid (“the grievors”) are employed by the Treasury Board (Transport Canada) (“the employer”) and have been for some years. At all times material to this grievance, Mr. Reid was employed in the position of Civil Aviation Safety Inspector – Aerodromes and Air Navigation. Mr. Manuel, at all material times, was in the position of Civil Aviation Safety Inspector - Civil Aviation, Commercial and Business Aviation.

2 On April 2, 2008, Mr. Manuel filed a grievance, and on June 2, 2008, Mr. Reid filed a similar grievance. Those grievances are before me. The grievors alleged that the employer violated the collective agreement, in particular article 33. Specifically, the grievors alleged that the employer failed to provide them with a “… complete and current statement of duties and responsibilities.” The relevant collective agreement between the employer and Canadian Federal Pilots Association (“the union”) expired January 25, 2008 (“the collective agreement”).

II. Hearing

3 These matters, along with a third grievance, were initially set down for a hearing in Moncton, New Brunswick, in October 2009. Before the hearing got underway, on October 7, 2009, the parties agreed to enter into “Memorandum of Agreement”, which read as follows:

Whereas the grievors have filed grievances alleging a violation of Article 33.01 of the Collective Agreement signed on October 10, 2006 between the Bargaining Agent and the Employer (Expiry date - January 25, 2008;

Whereas the grievors and the bargaining agent have referred the said grievances to adjudication;

Whereas George Filliter, Board Member, has been appointed as adjudicator to hear and determine these references to adjudication;

The parties hereby agree to resolve the within references to adjudication on the following basis:

1. Transport Canada hereby commits to issuing a statement of current duties for each of the grievors' positions, no later than March 31, 2010.

2. Transport Canada has determined to achieve the design of the statement of current duties through the use of a focus group approach. A minimum of one CFPA representative who is a member of the AO Bargaining Group will be invited to participate in the focus group exercise. Additionally, a maximum of two of the six grievors will be permitted to participate in the relevant focus group. Such participation, whether on the part of the Association or the grievors, shall not be mandatory, and Transport Canada will issue a statement of current duties, as contemplated herein not later than March 31, 2010, irrespective of the nature and extent of such participation, if any.

3. Transport Canada agrees that within 30 days following the issuing of such statements of current duties, they shall be referred to classification for rating and classification purposes.

4. In consideration of the Employer's commitments specified in clauses 2 and 3 of this Memorandum of Agreement, the six within grievances are hereby adjourned, to be rescheduled for hearing no sooner than April 30, 2010, at the option of the Association and the grievors.

5. The parties agree that counsel will cooperate to jointly request a rescheduling of the within grievances to a date no earlier than April 30, 2010.

6. The parties agree that Adjudicator George Filliter shall remain seized of these matters.

7. The parties agree that in the event that the Association and the grievors exercise their right to return the matter to a hearing, the adjudicator shall be seized of and shall have jurisdiction:

- to determine whether the statements of current duties existing as at the date of each grievance accurately and completely describe the duties and functions of such position as at the date the grievance was filed and to issue such remedy as he deems appropriate in the circumstances pursuant to section 228 of the Public Service Labour Relations Act;

8. Following such a hearing as aforementioned, if necessary, the parties are jointly committed to the goal of reaching agreement on the date for retroactive application of the statement of current duties for each individual position. In the event that they are unable to agree, the parties will jointly refer such individual retroactive application disputes to Adjudicator Filliter for determination.

9. The Association hereby agrees to adjourn the group grievance bearing PSLRB File Number 567-02-20 which is currently scheduled to be heard in Ottawa on November13, 2009 on the same terms and conditions as the six within grievances.

10.  The parties agree that all other outstanding Article 33.01 grievances with the Operational Branches of Civil Aviation Directorate of Transport Canada shall be dealt with as follows:

(a) Parties shall consult in order to establish similarities with the within grievances;

(b) Those grievances that are similar in nature or identical to the within grievances shall be dealt with on the same terms as this agreement.

11.  Pursuant to section 223(2)(b) of the Public Service Labour Relations Act, the parties hereby agree and jointly select Board Member George Filliter as the Adjudicator to be appointed to hear all of the grievances described in paragraphs 9 and 10 of the Memorandum of Agreement in the event that any of them are referred to adjudication and jointly agree to make this request to the Chair of the Board. [sic throughout]

III. Issue

4 At the start of the hearing, the grievors confirmed that, for the most part, the employer complied with the terms of the Memorandum of Agreement. Focus groups were formed, and union members actively participated in the process. This resulted in the publication of a new “generic” job description for the position of Civil Aviation Safety Inspector, Flight Operations (Exhibit 3). Although the employer did not meet the March 31, 2010 deadline, counsel for the union confirmed that that is not a concern for the grievors and that it is not a matter for me to consider.

5 The issues before me are as follows. First, was the employer in violation of article 33 of the collective agreement when the grievors filed their grievances? If so, then I must determine the appropriate remedy. As for that remedy, the union and the employer agreed that I might have to determine the effective date of the new complete and current statement of duties and responsibilities.

IV. Facts

6 Both grievors testified, as did Jennifer Taylor, Director of National Operations, and Arthur Allan, Regional Director for Civil Aviation, Atlantic Region, for the employer. In addition, the parties consented to the introduction of 14 exhibits.

7 After hearing the evidence, I was impressed that very little is really in dispute with respect to the relevant facts.

8 It is useful to set out the wording of article 33 of the collective agreement, which states as follows:

Upon written request, an employee shall be provided with a complete and current statement of the duties and responsibilities of his or her position, including the classification level and, where applicable, the point rating allotted by factor to his or her position, and an organization chart depicting the position’s place in the organization.

9 As of the filing date of his grievance, Mr. Manuel’s job description (Civil Aviation Safety Inspector – Aeroplanes) dated to 1992. Similarly, Mr. Reid’s job description (Civil Aviation Safety Inspector – Aerodromes) dated to 1990 (Exhibit 4, Tabs 1 and 2 respectively).

10 It is undisputed that the job descriptions were the subject of a classification process that occurred some time ago. The result was that those working under the job descriptions were classified CAI-2 (Civil Aviation Inspector 2).

11 The grievors testified that their job descriptions were not complete and current statements of duties and responsibilities. They testified about several functions that they performed in 2008, when they filed their grievances, which were not reflected in the job descriptions. For instance, the grievors both testified to the added responsibility that occurred in 2001 when the employer added certain delegated authorities to them both.

12 Mr. Allan and Ms. Taylor, on the other hand, testified that, to a very large extent, the 1990 and 1992 job descriptions reflect the work performed by the grievors and that therefore they could be considered complete and current statements of duties and responsibilities. However, I find it noteworthy that both of them were careful not to testify that those job descriptions were completely accurate and that both indicated that the grievors in 2008 and later performed duties not included in either the 1990 or 1992 job description.

13 As a result of the Memorandum of Agreement executed in October 2009, the union and the employer worked diligently, cooperatively and collegially to develop a new generic job description for all civil aviation safety inspectors (Exhibit 3). I extend my congratulations to the parties for this fruitful and effective approach.

14 The evidence was that the new generic job description was developed with the understanding that the employer was introducing a new matrix-management model to provide its services to companies that rely on the employer. Mr. Allan and Ms. Taylor described in some detail that the matrix-management model uses a multi-disciplinary team approach rather than individual experts. Those teams are led by individuals with no line authority over fellow team members that possess the necessary skill set and knowledge to achieve the required client-service results. They may rely on individual expertise within the team.

15 Although it was acknowledged that this system, often referred to as the National Organization Transition Implementation Project (NOTIP), has not yet been fully implemented, the employer unilaterally determined the effective date of the new generic job description to be April 1, 2010.

16 The evidence of the grievors, Mr. Allan and Ms. Taylor was that, as of April 1, 2010, the employer and the union accepted that the new generic job description was a complete and current statement of duties and responsibilities. However, the grievors testified that it was also their complete and current statement of duties and responsibilities when they filed their grievances.

17 Perhaps the most telling evidence was that of Mr. Allan. At the close of the second day of the hearing, counsel for the union asked him in cross-examination to identify those parts of the new generic job description that the grievors were not performing before April 1, 2010 and after 2006. Mr. Allan indicated that he would have to take some time to go through the job description in detail.

18 With the consent of the parties, I ordered Mr. Allan to prepare a written answer. He did so and emailed it to the Public Service Labour Relations Board (“the Board”), which forwarded it to both counsel before the third day of hearing resumed. It was eventually entered, with consent, as an exhibit (Exhibit 9).

19 When the third day of the hearing resumed, counsel for the union asked for and was granted the right to continue cross-examining Mr. Allan. Quite candidly, Mr. Allan acknowledged that much of what the employer was attempting to implement had not been implemented.  For instance, the matrix-management model has not yet been fully implemented. And he also testified that both grievors are, for the most part, doing the same things that they have been doing for the last five years, since the Safety Management System was implemented in 2006.

20 Although I did not hear much evidence with respect to the Safety Management System, it is acknowledged that its introduction in 2006 also changed the grievors’ duties and responsibilities to some extent.

21 However, as Mr. Allan stated in cross-examination, over the last five years, since the Safety Management System was implemented, the grievors’ duties and responsibilities have not significantly changed. Specifically, he acknowledged that the skills and knowledge required by the grievors have not significantly changed. Mr. Allan also acknowledged that the grievors still have the same desk, duties and functions that they have had for the last five years.

22 Like the former job descriptions, the new generic description also went through a classification process. As a result, it was classified CAI-3 (Civil Aviation Inspector 3).

V. Summary of the arguments

A. For the grievor

23 The grievors submitted that I have ample evidence to determine that the 1990 and 1992 job descriptions (Exhibit 4, Tabs 1 and 2) were not complete and current statements of duties and responsibilities when the grievances were filed. Counsel for the union submitted that those job descriptions were “hopelessly out of date.”

24 Specifically, counsel for the union submitted that those descriptions did not reflect changes that occurred in 2001, when the grievors were delegated certain defined authority (Exhibit 5) and that they did not reflect the duties and responsibilities granted to the grievors as a result of the Safety Management System implemented in 2006. Finally, the grievors submitted that the employer, in its second-level reply, appeared to acknowledge the deficiency and agreed to address those areas through the NOTIP process (Exhibit 4, Tabs 4 and 5).

25 Furthermore, counsel for the union submitted that, although the evidence showed that the grievors agree that the new generic job description (Exhibit 3) is a complete and current statement of duties and responsibilities, no evidence was adduced that the grievors’ duties and responsibilities have changed. Counsel for the union explained that, if it were not for the completion of the new generic job description, I would have been asked to order the employer to draft such a document to reflect the reality of the grievors’ duties and responsibilities (Dervin v. Treasury Board (Department of National Defence), 2009 PSLRB 50).

26 The grievors take the position that the job description has already been redrafted with the approval of the new generic job description for the position of Civil Aviation Safety Inspector – Flight Operations (Exhibit 3). Both grievors testified that that job description was a complete and current statement of duties and responsibilities and therefore that it complied with article 33 of the collective agreement. Counsel for the union noted that, in his view, even the employer’s witnesses, in particular Mr. Allan, acknowledged that the grievors’ duties and responsibilities have not changed in the last five years. Instead, the employer is altering its way of doing business.

27 The grievors took the position that the new generic job description should be considered the complete and current statement of duties and responsibilities in effect when the grievances were filed. To that end, they noted that, firstly, the new generic job description was drafted as a direct result of the Memorandum of Agreement (Exhibit 2). Although it was not released by the expected date March 31, 2010, the employer unilaterally determined the effective date to be April 1, 2010.

28 However, according to the grievors, the employer adduced no evidence to explain why that date was chosen. Additionally, counsel for the union submitted that the overwhelming evidence was that the grievors were performing the same duties and responsibilities when they filed their grievances as on April 1, 2010.

29 Counsel for the union submitted that the remedy that I should grant would be to first declare that the new generic job description (Exhibit 3) is the complete and current statement of duties and responsibilities of the grievors. He also submitted that I should determine that the effective date of April 1, 2010 determined by the employer was arbitrary and that it would be wise if I determined the date based upon the earliest date that the employer was made aware of the issue.

30 Counsel for the union noted that the earliest grievance filed by members of the union was that of David Bryant, who filed his grievance on September 7, 2007. Counsel for the union submitted that, even though the Bryant grievance is not before me, I should determine that the effective date of the new generic job description is 25 days before September 7, 2007, following the rationale set out by the Federal Court of Appeal in Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813) (C.A.) (QL).

B. For the employer

31 The employer submitted that the scope of my jurisdiction is defined by the collective agreement, the grievances before me and the Memorandum of Agreement (Exhibit 2). Essentially, counsel for the employer submitted that the issue before me is to determine first whether the job descriptions in place (Exhibit 4, Tabs 1 and 2) when the grievances were filed (Exhibit 4, Tabs 4 and 5) were complete and current statements of duties and responsibilities.

32 If I were to determine that the 1990 and 1992 job descriptions were not complete and current statements of duties and responsibilities when the grievances were filed, counsel for the employer concurred with counsel for the union that I would have two options and that each would be in line with the Board’s jurisprudence as set out in Dervin.

33 The first approach, which I consider the strict application of Dervin, would be to conclude what other duties and responsibilities should be included in the existing job description (either 1990 or 1992) and to order the employer to rewrite the job description to reflect them.

34 That said, the employer concurred that the second approach, given the circumstances, would be that, if I agreed that the new generic job description reflected the grievors’ duties and responsibilities when they filed their grievances, I could and I would be in compliance with the approach articulated in Dervin.

35 However, counsel for the employer reminded me that were I to adopt the first approach, I would have no authority to rule on classification. If I were to adopt the second approach and conclude that the new generic job description was the complete and current statement of duties and responsibilities when the grievances were filed, I could order a remedy to take effect only 25 days before the grievances were filed (Coallier).

VI. Analysis

36 Both parties agreed that Dervin would allow me to take one of two approaches with respect to determining what the grievors’ complete and current statements of duties and responsibilities were when they filed their grievances.

37 First, I must examine the 1990 and 1992 descriptions (Exhibit 4, Tabs 1 and 2) and decide whether they are complete and current statements of duties and responsibilities.

38 I am convinced by the evidence of all the witnesses that the 1990 and 1992 job descriptions could in no way be considered complete and current statements of duties and responsibilities. First, the evidence is consistent that they do not reflect the changes to the work of civil aviation safety inspectors that resulted from the implementation of the Safety Management System in 2006, whether categorized as significant, as suggested by counsel for the union, or otherwise, as suggested by counsel for the employer. When reaching that conclusion, I noted that both employer witnesses, Mr. Allan and Ms. Taylor, acknowledged that fact.

39 Furthermore, the 1990 and 1992 job descriptions do not reflect the delegated authority that occurred in 2001.

40 So what approach should I take?

41 Were I to decide to adopt the first approach, I would be required to decide what portions of the grievors’ duties and responsibilities are not included in the job descriptions and to order the employer to redraft the new generic job description. That statement would then be subject to the classification process. I call this the strict Dervin approach.

42 This is an extraordinary case in that, as a result of the Memorandum of Agreement, the employer completed the new generic job description. If I determine that the new generic job description did not apply to the grievors when they filed their grievances, it would result in a waste of time and resources, since I would then order the employer to draft a job description and then send it through the classification process.

43 The parties agreed that it would be appropriate under the Dervin approach for me to consider the new generic job description (Exhibit 3) and to determine whether it was a complete and current statement of duties and responsibilities when the grievances were filed. Were that approach taken, then I would also have to decide the effective date of new generic job description.

44 Having considered the evidence, in particular that of Mr. Allan, I conclude that the new generic job description was in fact the complete and current statement of duties and responsibilities for the grievors when they filed their grievances.

45 When reaching that conclusion, I was buoyed by two facts. First, the parties, in their Memorandum of Agreement (Exhibit 2), agreed that the employer would issue a statement of current duties for each of the grievors’ positions no later than March 31, 2010. It is uncontested that the new generic job description was indeed the result of the Memorandum of Agreement.

46 Furthermore, in my view, the employer’s actions convinced me that it takes no issue with that conclusion. Although much evidence was adduced as to what parts of the duties set out in the new generic job description the grievors do or do not perform, it is uncontested that the employer unilaterally concluded that the effective date of its application was April 1, 2010.

47 I heard no evidence that would convince me that any significant change occurred in the grievors’ duties between the dates of their grievances and April 1, 2010. Indeed, the evidence was that the matrix-management model and the NOTIP are no more implemented now than on April 1, 2010, let alone at the dates of the grievances. The implementations of the matrix-management model and the NOTIP are ongoing.

48 Furthermore, the matrix-management model and the NOTIP are management processes. In my view, at least in this case, they do not impact the duties and responsibilities of the civil aviation safety inspectors.

49 I also cannot overlook the employer’s decision to unilaterally determine the effective date of the new generic job description as April 1, 2010. If there were any justification for that date, I would have expected the employer to provide proof of what occurred on that date and why it was chosen as the effective date. I heard none.

50 I conclude that the employer interpreted paragraph 1 of the Memorandum of Agreement to mean that the complete and current statement of duties and responsibilities would be applicable on March 31, 2010. In fact, the paragraph is clear and unequivocal. It required the employer to issue a statement of current duties no later than March 31, 2010. In fact, paragraph 8 of the Memorandum of Agreement speaks of the retroactivity of the complete and current statement of duties and responsibilities.

51 So, with respect to the grievors, what is the specific effective date of application of the new complete and current statement of duties and responsibilities?

52 First, I must consider the wording found in clause 35.12 of the collective agreement as set forth in Exhibit 1. It states as follows:

An employee may present a grievance to the first (1^st) level of the procedure in the manner prescribed in clause 35.07, not later than the twenty-fifth (25^th) day after the date on which he is notified orally or in writing or on which he first becomes aware of the action or circumstances giving rise to the grievance.

53 I cannot overlook the conclusions in Coallier. Although I agree that a consistent approach to remunerating members of the same bargaining unit does have its merits, if I ignored the wording of the collective agreement, in my view, I would be making a fundamental error. Furthermore, counsel for the union was unable to provide me any legal support to have me conclude that I should use the date of the Bryant grievance (see paragraph 30 above) to calculate the date of the applicability of the complete and current statement of duties and responsibilities for Messrs Manuel and Reid.

54 Neither grievor presented any evidence that he became aware of the action or circumstances giving rise to the grievance only on the date on which he filed his grievance. In fact, their evidence was that they had brought this matter up with the employer before filing the grievances in hopes of straightening out the issue and that, when no action was taken, they felt compelled to file their grievances.

55 I conclude that the case law is clear. Given my conclusions about the new generic job description being the complete and current statement of duties and responsibilities as of the date of filing the grievances, its effective date is 25 days before the grievances were filed.

56 I recognize that this results in a situation that the grievors might consider unfair and inequitable, but given the clear conclusions in Coallier, I have no alternative.

57 Finally, I note that the new generic job description has already gone through the classification process, which resulted in the determination that civil aviation safety inspectors are now classified CAI-3 (Civil Aviation Inspector 3).

 

VII. Conclusion

58 I conclude as follows

• The employer was in violation of article 33 of the collective agreement when the grievances were filed in that the job description applicable to the grievors was not a complete and current statement of their duties and responsibilities.
• The new generic job description, drafted after the execution of the Memorandum of Agreement, is a complete and current statement of duties and responsibilities.
• The new generic job description reflects the grievors’ duties and responsibilities when they filed their grievances and therefore was the complete and current statement of duties and responsibilities of the grievors at that time.

59 I will remain seized of this matter in the event that the parties do not agree on the implementation of this decision.

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

VIII.Order

61 The grievances are allowed.

January 24, 2012.

George Filliter,
adjudicator