FPSLREB Decisions

I. Introduction

1  The issues in the grievances referred to adjudication involve interpreting clause 25.05 and Article 32 of the collective agreement between the International Brotherhood of Electrical Workers, Local 2228 (“the union”), and the Treasury Board (“the employer”), for the Electronics Group, expiry date August 31, 2010 (“the collective agreement”).

2 Hilary Gill and Marc Bourque, (“the grievors”), claimed compensation for meal allowances during overtime while conducting sea trials and requested payment of that overtime in accordance with the overtime provision in the collective agreement. The employer denied the compensation on the basis that, while on sea trials, the grievors are entitled to compensation under the sea trials allowance provisions of the collective agreement to the exclusion of the overtime provisions.

3 In lieu of a hearing the parties submitted an agreed statement of facts with exhibits, along with written submissions. The grievors’ submissions were followed by the employer's reply. The grievors then submitted a rebuttal in which they objected to the employer’s argument that clause 25.05 did not permit the allowance they claimed because it mentioned only reimbursement. The grievors argued that this was an attempt to introduce a new ground that was not mentioned during the various grievance levels. Stating that the employer had from the outset conceded that clause 25.05 provided an allowance. In their arguments the grievors referred to the replies at the different levels of the grievance procedure. The agreed statement of facts is reproduced as follows, with excerpts from its exhibits. I included excerpts from the employer’s replies because of the issue raised in the grievors' rebuttal submission.

II. Summary of the evidence

A. Agreed statement of facts

4 The grievors are electronic technologists, members of the union and employees of the Department of National Defence, working at Fleet Maintenance Facility Cape Scott. When the grievances were filed, the grievors were employed at the EL-06 group and level. Consequently, the collective agreement applies to these grievances. The grievors claimed compensation for meal allowances during overtime while conducting sea trials and requested payment for that overtime in accordance with clause 25.05 (“Overtime”) of the collective agreement. The employer denied the compensation on the grounds that, because the grievors are entitled to compensation under Article 32 (“Sea Trials’ Allowance”), there is no entitlement under clause 25.05. The relevant collective agreement provisions read as follows:

Article 25 (Overtime)

25.01 An employee shall be paid at his or her straight-time hourly rate for all work performed during his or her regularly scheduled hours of work, including all work performed during regularly scheduled hours of work which embraces not more than two (2) hours of the latter part of a day designated as a holiday or not more than two (2) hours of the latter part of a second (2nd) day of rest, and not more than two (2) hours at the beginning of the following day.

25.02 Each completed six (6) minute period of overtime shall be compensated for at the following rates:

(a) time and one half (1 1/2) for hours worked other than provided in 25.01;

(b) notwithstanding clause 25.01, double (2) time for all hours worked in excess of twelve (12) in a continuous period of work, or, in excess of twelve (12) hours of work in a day. This section shall not apply to Article 27 "Travel", except as specifically provided in Article 27;

(c) an authorized break of up to one (1) hour will not be considered as breaking the continuity of hours worked in order to qualify under paragraph 25.02 (b).

25.03 "Time and one-half" is one and one-half (1 1/2) times the straight-time hourly rate.

25.04 "Double time" is twice (2X) the straight-time hourly rate.

25.05 Except for employees serving abroad with Foreign Affairs and International Trade where current local conditions for payment of meals will continue, employees working overtime will be granted meal breaks and compensated for meals as follows:

(a) An employee who works three (3) or more hours of overtime immediately before his or her scheduled hours of work shall be provided a paid meal break of up to one-half (1/2) hour duration and be reimbursed his or her expenses for one (1) meal in the amount of ten dollars and fifty cents ($10.50);

(b) a employee who works three (3) or more hours of overtime immediately following his or her scheduled hours of work shall be provided a paid meal break of up to one-half (1/2) hour duration and be reimbursed his or her expenses for one (1) meal in the amount of ten dollars and fifty cents ($10.50).

(c) For each four (4) hours an employee works overtime continuously extending beyond the period provided in paragraph (a) or (b) above, he or she shall be provided a paid meal break of up to one-half (1/2) hour and be reimbursed at the rate of ten dollars and fifty cents ($10.50) for each meal.

(d) When, at the request of the employee, a meal period of more than one-half (1/2) hour can be arranged and taken prior to the beginning of an overtime assignment such meal period shall be unpaid time and no reimbursement for expenses will be made. Utilization of this option shall not serve to deny an employee entitlement under paragraph (c) above.

25.06 (a) If an employee is given instructions, prior to his or her leaving work, to work overtime which is not contiguous to his or her work period and the period of non-contiguous overtime commences twenty-four (24) hours or less from the end of the period of work in which the employee receives such instructions, the employee shall be paid for the time actually worked at the applicable overtime rate, or a minimum of three (3) hours' pay at straight-time, whichever is the greater.

(b) If an employee is scheduled in writing or otherwise informed prior to his or her leaving work, to work overtime which is not contiguous to his or her work period and the period of non-contiguous overtime commences more than twenty-four (24) hours from the end of the period of work in which the employee receives such instructions, the employee shall be paid for the time actually worked at the applicable overtime rate, or a minimum of one (1) hour's pay at straight time, whichever is the greater. However, if the employee is required to report more than once within that period, he or she shall be compensated in accordance with paragraph (a) above.

25.07 (a) When an employee is required to work either contiguous or non-contiguous overtime and is required to use other than normal public transportation services, the employee's entitlement to transportation costs will be as provided in the Travel Policy.

(b) Other than when required by the Employer to use a vehicle of the Employer for transportation to a work location other than his or her normal place of work, time spent by the employee reporting to work or returning to his or her residence shall not constitute time worked.

25.08 (a) When operational requirements permit, an employee assigned to work away from his or her assigned permanent headquarters or aboard ship may accumulate time off in lieu of overtime at the appropriate overtime rate. Such time off will be liquidated at a mutually acceptable time.

(b) If any time off in lieu of overtime earned under paragraph 25.08 (a) cannot be liquidated by the end of the fiscal year, then, at the request of the employee and with the approval of the Employer, payment in cash will be made at the employee's rate of pay as of March 31st.

(c) Overtime earned within the assigned permanent headquarters area or overtime earned outside the headquarters area which does not require an overnight stay shall be compensated in cash, except where, upon request of an employee and, with the approval of the Employer, an employee may be granted time off in lieu of overtime at the appropriate overtime rate.

(d) If any time off in lieu of overtime earned in paragraph 25.08 (c) cannot be liquidated by the end of the fiscal year, then payment in cash will be made at the employee's rate of pay as of March 31st.

25.09 The Employer will make every reasonable effort:

(a) to allocate overtime work on an equitable basis among readily available qualified employees;

(b) to give employees who are required to work overtime, adequate advance notice of this requirement;

(c) unless otherwise agreed to locally between management and local union representatives, the period of equitable distribution of overtime referred to in paragraph (a) above is over a twelve-month (12) period as determined by the Employer.

25.10 An employee aboard ship who performs overtime work which is not contiguous to his or her regularly scheduled hours of work shall be paid the greater of:

(a) compensation at the applicable overtime rate for the time worked,

or

(c) one (1) hour's pay at the straight-time rate.

Article 32

Sea Trials' Allowance

32.01 (a) When an employee is required to be in a submarine during trials under the following conditions:

(i) he or she is in a submarine when it is in a closed down condition either alongside a jetty or within a harbour, on the surface or submerged; i.e., when the pressure hull is sealed and undergoing trials such as vacuum tests, high-pressure tests, short trials, battery ventilation trials or other recognized former trials, or the submarine is rigged for diving;

or

(ii) he or she is in a submarine when it is beyond the harbour limits on the surface or submerged;

or

(b) when an employee is required to proceed to sea beyond the harbour limits aboard a HMC Ship, Auxiliary Vessel or Yardcraft for the purpose of conducting trials, reporting defects or dumping ammunition;

or

(c) when an employee is required to work in a shore-based worksite in direct support of an ongoing sea trial;

he or she shall be compensated in accordance with clause 32.03.

32.02  Clause 23.13 (Encroachment) shall be applied at the termination of the sea trial only.

32.03 (a)  He or she shall be paid at the employee's straight-time rate for all hours during his or her regularly scheduled hours of work and for all unworked hours aboard the vessel or at the shore-based work site.

(b) He or she shall be paid overtime at time and one half (1 1/2) the employee's straight-time hourly rate for all hours worked in excess of the regularly scheduled hours of work up to twelve (12) hours.

(c) After this period of work, the employee shall be paid twice (2X) his or her straight-time hourly rate for all hours worked in excess of twelve (12) hours.

(d) After this period of work, the employee shall be paid three (3) times his or her straight-time hourly rate for all hours worked in excess of sixteen (16) hours.

(e) Where an employee is entitled to triple (3) time in accordance with paragraph (d) above, the employee shall continue to be compensated for all hours worked at triple (3) time until he or she is given a period of rest of at least ten (10) consecutive hours.

(f) Upon return from the sea trial, an employee who qualified under paragraph 32.03 (d) shall not be required to report for work on his or her regularly scheduled shift until a period of ten (10) hours has elapsed from the end of the period of work that exceeded fifteen (15) hours.

32.04 In addition, an employee shall receive a submarine trials allowance equal to twenty-five per cent (25%) of his or her basic hourly rate for each completed one-half (1/2) hour he or she is required to be in a submarine during trials as per the conditions prescribed in paragraph 32.01 (a).

5  Sea trials involve testing electronic equipment aboard submarines and vessels. Technologists test the vessels’ electronic equipment to ensure that it functions correctly. The nature of the work involves continuous data collection that should not be interrupted, to maximize the trial’s efficiencies.

6 The parties agreed that the hearings for the grievances would be consolidated. The Public Service Labour Relations Board set down the grievances for a hearing beginning on October 25, 2011. No hearing was actually held as the parties agreed to proceed by submitting the agreed statement of facts and making written submissions.

1. Grievances filed by Ms. Gill

a. PSLRB File No. 566-02-2731 [Union Grievance # 08-0000000261]

7 At all material times, Ms. Gill was employed at the EL-06 level with the Department of National Defense. She was assigned to a sea trial from March 18 to 20, 2008. During that trial, she worked overtime hours from 19:00 to 21:00 on March 18, 2008, from 23:00 on March 18 to 07:00 on March 19, 2008, from 23:00 on March 19 to 07:00 on March 20, 2008, and from 15:50 to 19:30 on March 20, 2008.

8 While performing her duties on HMCS Ville de Québec from 23:00 on March 18 to 12:00 on March 19, 2008 and from 23:00 on March 19 to 12:00 on March 20, 2008, the nature of the work required Ms. Gill to work the 23:00 to 12:00 time period. The mess kitchen was closed and not serving meals when Ms. Gill sought to have her meals. Ms. Gill submitted a total of five meal allowance requests in accordance with clause 25.05 of the collective agreement, which the employer denied.

9 The employer's position is that, where meals cannot be consumed during normal meal hours, employees can make alternative arrangements to have meals set aside. The employer further contends that Ms. Gill did not make such arrangements. Ms. Gill contends that she was not made aware of this possibility.

10  As a result Ms. Gill filed a grievance in which she requested compensation for meal allowances during overtime while conducting sea trials, in accordance with clause 25.05 of the collective agreement.

11 Exhibit 2 is Ms. Gill's grievance dated April 29, 2008. Exhibit 3 is the employer's first-level response and its amended response, dated June 19, 2008 and July 15, 2008, respectively. Exhibit 4 is the employer's second-level response, dated July 17, 2008. Exhibit 5 is the employer's final-level response, dated December 29, 2008.

12 The "Details of Grievance" section in Exhibit 2 reads as follows:

I was performing my duties onboard HMCS Ville De Quebec while at sea on 18-20 March 2008. While working from 11 pm to 12 noon the next day, on two of these days, I was unable to have meals at the regular meal hours due to the hours that I worked. When I got up from my sleep and 3 to 4 hours into the work, when I went to the mess to have a meal, the mess kitchen was closed and was not serving any meals. On my return from sea I submitted two meal allowance requests for each of the two nights, in accordance with articles 25.05 (a) and 25.05 (b). When I received my check on April 22, 2008 for the overtime hours worked, the meal allowances were not included. After talking with my Section Supervisor I was informed that the four meal allowances submitted by me were denied by Management.

13 Exhibit 3, the employer’s first level response, as amended, reads in part as follows:

During the first level hearing, you stated that you chose to work through your meal breaks to progress the job and that you did not make any inquiries as to where you would be able to obtain food when you went to the mess and found it closed. You did not make any inquiries on the 2nd occasion. Although it is the responsibility of the Trial Coordinator to ensure employees are aware of any arrangements for the specific trials, including meals, it is also the responsibility of employees to raise any issues they have with the Trial Coordinator and Mess personnel regarding alternate arrangements for meals that can't be taken during regular Mess hours. However, management will take steps to ensure that the Trials Coordinators are reminded of their responsibilities for communicating all necessary information to the trial participants. Hopefully, this will clear up any future concerns regarding meal availability while conducting sea trials.

As meals are available "24/7" during the conducting of Sea Trials, there is no separate entitlement to meal allowances under Article 25, clauses 25.05 (a) and 25.05 (b) of the EL Collective Agreement. Employees conducting sea trials are fully compensated in accordance with Article 32.03 of the EL Collective agreement – Sea Trials Allowance.

Accordingly, your grievance is denied and the corrective action you have requested will not be taken.

14  The employer’s second-level response, (Exhibit 4) reads as follows:

At the 2nd level hearing on July 2, 2008, Phil Johnson, your IBEW union representative, requested that the details of your grievance be amended as follows:

In part "B" (on your original grievance form) where it reads "in accordance with 25.05 (a) and 25.05 (b)" to be amended to read "in accordance with 25.05 (a), 25.05 (b) and 25.05 (c)" and

In part "B" (on your original grievance form) to be amended to read "to be paid for 5 meal allowances".

These changes were acknowledged and agreed upon by all parties present at the 2nd level hearing.

…

Although the motive, (to avoid incurring additional overtime), that led you to work through your breaks while conducting sea trials was admirable, the fact remains that when you are aboard ship conducting Sea Trials, food is made available "24/7". Meal/food arrangements are made through the Trials Co-ordinator and Mess manager and communicated to the employees conducting the trials. As previously mentioned, it is the role of the Trial’s Co-ordinator to provide specific and pertinent information concerning specific trials, including how meals/food will be provided and to also respond to requests for information from the persons conducting the trials. It appears, in this instance, as if there may have been a communication breakdown which will need to be addressed in order to avoid a future re-occurrence of this issue.

Please rest assured I am fully committed to the well-being of all my employees and I will be taking steps to ensure the Trials Co-ordinators are aware of their responsibility to ensure trial participants are knowledgeable about all issues concerning their well-being while aboard ship conducting trials. As well, I am pleased with your dedication and professionalism in the administration of the trials in a timely manner.

Notwithstanding, from the information, guidance and advice provided to me, I find that since you are entitled to be compensated under Article 32 Sea Trials Allowance for the period in question, there is no entitlement under Article 25.05 (a), (b) & (c).

Accordingly, your grievance is denied and the corrective action you have requested will not be taken.

15   The employer’s final-level response, (Exhibit 5) reads in part as follows:

This is the final level response to the subject grievance concerning your meal allowance during sea trials. I have carefully reviewed the circumstances of your grievance, including the representations made on your behalf by Mr. Wayne Morrison, from the International Brotherhood of Electrical Workers. I find that management's decision to not award meal allowance while on sea trial was done in accordance with the applicable articles of your collective agreement. Specifically, I find that Article 32 applies to this situation, not Article 25.

Accordingly, your grievance is denied and the corrective measure requested will not be granted.

(b) PSLRB File 566-02-3366 [Union Grievance #08-0000000467]

16  Ms. Gill was assigned to a sea trial from July 21 to 23, 2008. During that trial, she worked overtime from 15:30 on July 21, 2008 to 00:30 on July 22, 2008 and from 15:30 to 21:00 on July 22, 2008.

17 Ms. Gill continuously performed her duties aboard HMCS Montréal from 11:30 on July 21 to 00:30 on July 22, 2008, from 11:30 to 21:00 on July 22, 2008, and from 7:30 to 15:30 on July 23, 2008. Ms. Gill submitted three meal allowance requests in accordance with Article 25.05 of the collective agreement, which the employer denied.

18 As a result, Ms. Gill filed a grievance in which she requested compensation for meal allowances during overtime while conducting sea trials, in accordance with clause 25.05 of the collective agreement.

19 While conducting sea trials during the period in question, Ms. Gill was provided with all her meals at the employer's expense.

20 Exhibit 6 is Ms. Gill's grievance dated July 29, 2008. Exhibit 7 is the employer's first-level response, dated November 13, 2008. Exhibit 8 is the employer's final-level response, dated December 2, 2009.

21 The "Details of Grievance" section in Exhibit 6 reads, in part, as follows:

I was performing my duties on board the HMCS Montréal at sea on 21-23 July 2008. On the first day I was performing trials from 11:30 a.m. to 00:30 a.m. and the second day I was performing trials from 11:30 a.m. to 21:00. On my return from sea I submitted two meal allowance requests for the first day and one meal allowance request for the second day iaw [sic] articles 25.05 (b) and (c). These meal allowance requests were denied by my Section Supervisor.

22   The employer’s  first-level response, (Exhibit 7) reads, in part, as follows:

While I commend your professionalism in conducting the trials in a timely manner and I acknowledge the well-being of my employees must be better communicated to ship staff with respect to the provision of meals/food, I find that since you are entitled to be compensated under Article 32 Sea Trials Allowance for the period in question, there is no entitlement under Article 25.05 (b) and (c).

Accordingly, your grievance is denied and the corrective action you have requested will not be taken.

23 The employer’s final-level response dated December 2, 2009, (Exhibit 8), is headed "Re: Grievance # 08-0000000467 & 698" and reads in part as follows:

I find that your manager's decision not to award meal allowances while on sea trials was in accordance with the applicable articles of your collective agreement. Specifically, I find that the Article 32 applies to this situation, not Article 25.

(iii) 566-02-5949 [Grievance #08-0000000698]

24 Ms. Gill was assigned to a sea trial from October 14 to 16, 2008. During that trial, Ms. Gill worked overtime from 00:00 to 07:30 on October 15, 2008 and from 00:00 to 07:30 on October 16, 2008.

25 Ms. Gill continuously performed her duties aboard HMCS Fredericton from 07:30 to 15:30 on October 14, 2008, from 00:00 to 13:00 on October 15, 2008, and from 00:00 to 07:30 on October 16, 2008. She submitted four meal allowance requests in accordance with Article 25.05 of the collective agreement, which the employer denied.

26 As a result, Ms. Gill filed a grievance in which she requested compensation for meal allowances during overtime while conducting sea trials, in accordance with clause 25.05 of the collective agreement.

27 While conducting sea trials during the period in question, Ms. Gill was provided with all her meals at the employer's expense.

28 Exhibit 9 is Ms. Gill's grievance dated October 21, 2008. Exhibit 10 is the employer's first-level response, dated November 13, 2008. Exhibit 11 is the employer's second-level response, dated February 2, 2009. Exhibit 12 is the employer's final-level response, dated December 2, 2009.

29 The "Details of Grievance" section in Exhibit 9 reads as follows:

I have been aggrieved because management has failed to comply with the IBEW Collective Agreement. I was performing my duties on board the HMCS Fredericton at sea on 14-16 October 2008. On the first day I was performing trials from 07:30 to 15:30 and the second day from 00:00 to 13:00 and the third day from 00:00 to 07:30. On my return from sea I submitted four meal allowance requests, for 15 October at 03:00 and 07:00 and 16 October at 03:00 and 07:00 iaw [sic] articles 25.05 (a) and (c). As directed by my Union, these periods are irrespective of whether a meal is provided or not. These meal allowance requests were denied in MASIS stating "Reason: Disagree with Premiums" by my Section Supervisor.

30  The employer’s reasons contained in its first-level response, (Exhibit 10) are identical to those in Exhibit 7.

31 The employer’s second-level response, (Exhibit 11), reads in part as follows:

I have also taken into consideration all of the information provided by you and your representatives at the 2nd level hearing. In addition, on 29 December, 2008, we received a final level decision from the Director General Labour Relations & Compensation on this same issue dealing with meal allowance entitlement while conducting sea trials and in receipt of Sea Trial Allowance. The decision stated, "I find that management's decision to not award meal allowance while in sea trial was done in accordance with the applicable articles of your collective agreement. Specifically, I find that Article 32 applies to this situation, not Article 25. The grievance was denied and requested corrective action will not be granted.

Following this recent decision and the direction, guidance and advice given to me, I find that there is no entitlement to meal allowances under Article 25.05 (a) & (c) since you are entitled to be compensated under Article 32, Sea Trials Allowance for the period in question.

Accordingly, your grievance is denied and the corrective action you have requested will not be taken.

32  Exhibit 12 appended to the agreed statement of facts is headed (“Re: Grievance #08-0000000698”). It is a letter dated December 2, 2009 addressed to Ms. Gill. It begins by stating that it is in reference to a grievance about a  payment for an incidental expense allowance. It therefore appears to have been included as an exhibit in error. The correct final-level response to grievance #08-0000000698 appears to be in Exhibit 8.

2. Grievances filed by Mr. Bourque

a. PSLRB File No. 566-02-2732 [Union grievance # 08-0000000287]

33 At all material times, Mr. Bourque was employed at the EL-06 level with the Department of National Defence. Mr. He was assigned to a sea trial from March 18 to 20, 2008. During that trial, he worked overtime from 19:00 to 24:00 on March 18, 2008, from 15:50 on March 19, 2008 to 00:30 on March 20, 2008, and from 15:50 to 19:30 on March 20, 2008.

34  While performing his duties aboard HMCS Ville de Quebec from 11:00 to 15:50 on March 18, 2008 and from 19:00 to 24:00 on March 18, 2008, and from 11:00 on March 19, 2008 to 00:30 on March 20, 2008, and 11:00 to 19:30 on March 20, 2008, the nature of the work required Mr. Bourque to work through the 20:00 meal break on March 18 and 19. In addition, while waiting to disembark from the ship while fully suited in flotation gear from 16:00 to 19:30 on March 20, 2008, Mr. Bourque was not able to participate in the meal. Mr. Bourque submitted three meal allowance requests, in accordance with clause 25.05 of the collective agreement, which the employer denied.

35  As in Ms. Gill’s case, the employer’s position is that if meals cannot be consumed during normal meal hours, employees can make alternative arrangements to have meals set aside. The employer further contends that Mr. Bourque did not make such arrangements. Mr. Bourque contends that he was not made aware of that option.

36  As a result, Mr. Bourque filed a grievance in which he requested compensation for meal allowances during overtime while conducting sea trials, in accordance with clause 25.05 of the collective agreement.

37  Exhibit 13 is Mr. Bourque's grievance, dated May 6, 2008. Exhibit 14 is the employer's first-level response, dated June 19, 2008. Exhibit 15 is the employer's second-level response, dated July 17, 2008. Exhibit 16 is the employer's final-level response, dated December 29, 2008.

38  The "Details of Grievance" section in Exhibit 13 reads as follows:

I was performing my duties onboard HMCS Ville de Québec while at sea on 18-20 March 2008. While working from 11 pm to 12 midnight, the nature of the work required me to continue working through the 8 pm meal/meal break period on two of these days. Also while waiting to disembark fully suited in flotation gear, from 4 pm to 7:30 pm on the last day, I was unable to partake in my meals/meal break. On my return from sea I submitted three meal allowance requests, one for each of the two nights and one for supper on the third day, in accordance with articles 25.05 (a) and 25.05 (b). When I received my check on April 22, 2008 for the overtime hours worked, the meal allowances were not included. After talking with my Section Supervisor I was informed that the three meal allowances submitted by me were denied by Management.

39  The employer’s first-, second-, and final-level responses, (Exhibits 14 to 16) are the same as those in exhibits 3 to 5 respectively.

b. PSLRB File No. 566-02-3367 [Union grievance # 08-0000000697]

40 Mr. Bourque was assigned to a sea trial from October 14 to 16, 2008. During that trial, he worked overtime from 16:00 on October 14 to 00:30 on October 15, 2008 and from 16:00 October 15 to 00:30 on October 16, 2008.

41 Mr. Bourque continuously performed his duties on HMCS Fredericton from 08:00 October 14 to 00:30 on October 15, 2008, from 12:00 on October 15 to 00:30 on October 16, 2008. He submitted four meal allowance requests, in accordance with clause 25.05 of the collective agreement, which the employer denied.

42 As a result, Mr. Bourque filed a grievance in which he requested compensation for meal allowances during overtime while conducting sea trials, in accordance with clause 25.05 of the collective agreement.

43 While conducting sea trials during the period in question, Mr. Bourque was provided with all his meals at the employer's expense.

44 Exhibit 17 is Mr. Bourque’s grievance dated October 21, 2008. Exhibit 18 is the employer's first-level response, dated November 13, 2008. Exhibit 19 is the employer's second-level response, dated February 2, 2009. Exhibit 20 is the employer's final-level response, dated December 2, 2009.

45 The "Details of Grievance" section in Exhibit 17 reads as follows:

I have been aggrieved by my meal allowance submissions being rejected. Details follow. I was performing my duties onboard HMCS Fredericton while at sea on 14-16 Oct 2008. While working from 7:30 am on Oct 14th up to midnight and again from 12 noon on Oct 15th up to midnight the work required me to take my overtime meals at 7:00 pm and 11:30 pm on both the 14th and 15th, each occurrence 1/2 hour in duration. These are paid meal breaks and in accordance with articles 25.05 (b) and 25.05 (c) should be reimbursed with a $10.50 meal allowance. As directed by my Union, these periods are irrespective of whether a meal is provided or not. On my return from sea I submitted my overtime and meal allowances, one for each occurrence (4 in total), in accordance with articles 25.05 (b) and 25.05 (c). These meal allowances were rejected in MASIS by my supervisor for the reason of "Disagree with Premiums" and I was instructed to resubmit my time without meal allowances. I recorded all rejections and re-submitted my time.

46  The employer’s reasons contained in its first, second, and final level responses, (Exhibits 18, 19, and 20), are the same as in Exhibits 10, 11, and 12, respectively.

III. Summary of the arguments

A. For the grievors

47 Clause 25.05 of the collective agreement sets out in clear language the mutual intent of the parties with respect to paying for meal breaks for employees working overtime. Clause 25.05, because of its specificity, prevails over article 32, relied on by the employer.

48  Clause 25.05 of the collective agreement states that meal break expenses are to be reimbursed in the amount of $10.50 when an employee works overtime immediately before or following his or her scheduled hours of work. Overtime meal breaks and compensation are to be paid "[e]xcept for employees serving abroad with Foreign Affairs and International Trade where current local conditions for payment of meals will continue …"

49  The parties clearly considered the specific conditions and exceptions governing overtime in clause 25.05 of the collective agreement. Sea trials are not listed as an exception.

50 Article 32 sets out in clear and unequivocal terms the mutual intentions of the parties with respect to scheduling sea trials work. However, it is silent about meal breaks, whether paid or unpaid.

51 During regular work, reference would normally be made to article 23 of the collective agreement, in particular clauses 23.04 and 23.05, which provide for a scheduled unpaid meal break of not less than 30 minutes. In this case, the grievors took their scheduled unpaid meal breaks during regular hours worked during sea trials, and the employer did not argue that they were not entitled to an unpaid meal break.

52 Likewise, clause 25.05 of the collective agreement provides for a half-hour meal break during overtime. As noted, article 32 is completely silent on unpaid or paid meal breaks.

53  It is a well accepted principle that the provisions of a collective agreement must be construed as a whole and that specific provisions must be interpreted in context. As an interpretive aid, there is also a presumption against redundancy, with the assumption that the parties did not agree to superfluous or unnecessary wording.

54 The parties acknowledged in the collective agreement that there are circumstances in which clause 25.05 will not apply and has specifically provided for those exceptions, as noted earlier. The collective agreement contains clear directions about scheduling unpaid and paid meal breaks, which binds the employer except for the exception in clause 25.05. Had the parties not wanted clause 25.05 to apply to sea trials, they would have stated an exception similar to the one noted earlier.

55  Clauses 23.05, 25.05 and article 32 are intended to work together to provide unpaid meal breaks during regularly scheduled hours on a sea trial and for a paid meal break and reimbursement during overtime.

56 The grievors referred to the following authorities: Brown and Beatty, Canadian Labour Arbitration, 4th ed., at para 4:2100, 4:2110 and 4:2120; Selkirk and St. Andrews Regional Library v. Canadian Union of Public Employees Union, Local 336 (2003), 119 L.A.C. (4th) 141 at para 36; Foote v. Treasury Board (Department of Public Works and Government Services), 2009 PSLRB 142; Canada Post Corporation v. C.U.P.W. (2002), 70 C.L.A.S. 381 at para 13; and UAW, Local 439 v. Massey-Harris Company (1947), 1 L.A.C. 68.

B. For the Employer

57 Clause 25.05 of the collective agreement does not provide a payment to the employees when they have been provided with a meal at the employer’s expense. Clauses 25.05 (a) and (b) state that an employee who works three or more hours of overtime immediately before or after his or her scheduled shift is to be "… reimbursed his or her expenses for one meal in the amount of …  $10.50". The words "reimburse" and "expense" have a common meaning, defined as repaying a person who has expended money or incurred cost.

58  In this case, where the grievors were provided with meals at the employer’s expense, it is clear that they cannot also be entitled to be reimbursed  the expenses for a meal. In this context, any payment made to the grievors under clause 25.05 of the collective agreement would be a form of additional remuneration for working overtime and not a reimbursement as provided for by the plain language of the collective agreement.

59 Although the grievors, as related in grievances PSLRB File Nos. 566-02-2731 and 2732, unfortunately were not able to eat the meals provided by the employer during their overtime shift, it does not amount to a reason to provide the grievors with a payment under clause 25.05 of the collective agreement. They could have made arrangements to have their meals set aside to be eaten later but they did not. Furthermore in those instances in which the grievors were unable to eat their meals at the times when they were provided, they still did not incur any expense that could be reimbursed under clause 25.05. Although this might appear harsh or unfair, the clear words of the collective agreement cannot be disregarded.

60  In the alternative, if it is held that clause 25.05 of the collective agreement permits a payment when the meal has been provided to an employee free of charge, article 32 takes precedence over article 25, and as such, no payment ought to be made.

61 Article 25 of the collective agreement sets out the framework that governs compensating overtime. For example, clauses 25.02 to 25.04 establish the applicable rates of pay for overtime. Clause 25.05 provides for a "reimbursement". That contrasts with the grievors’ submission that that clause provides for an allowance, that is, a payment made regardless of whether a meal is provided by the employer or regardless of whether any expense was incurred.

62 As the grievors contend, if a meal allowance is to be paid regardless of whether a meal is provided, it is clear that the payment is a form of additional remuneration, as it does not offset any corresponding expense.

63 Article 32 of the collective agreement, applies specifically when employees are engaged in a sea trial, as was the case in these grievances. The article sets how employees are to be compensated while on a sea trial. Specifically, it states that, when an employee is engaged in a sea trial "… he or she shall be compensated in accordance with clause 32.03."

64 Clause 32.03 of the collective agreement outlines how employees will be compensated for time at rest, regularly scheduled hours of work and overtime. That clause makes no provision for the payment of any meal allowance to employees engaged in overtime.

65 Article 32 of the collective agreement, while defining the compensation to be provided to employees on sea trials; does not mention payment for meals for employees working overtime, making it clear that payment for those meals is not part of the intended compensation package.

66 It is logical in this context that no reference is made to a meal allowance during sea trials. As all meals during sea trials are provided to employees at the employer's expense, it would be unusual to suggest that employees should nonetheless be paid a special allowance for meals when working overtime in that environment.

67 If the grievors received payment for meals when they also received meals free of charge, they would receive an additional monetary benefit. A financial benefit can be conferred only by clear language and not by implication.

68 The employer referred to the following authorities: Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, at para 51; Appleton et al. v. Treasury Board (Department of National Defence), 2006 PSLRB 83, at para 20; Lévesque v. Canada Customs and Revenue Agency,  2005 PSLRB 154, at para 56; Tembec Industries Inc. v. Pulp, Paper and Woodworkers of Canada, Local 15, [2010] B.C.C.A.A.A. No. 168, at para 31; Canadian Oxford Dictionary (2nd ed.); and Attorney‑General of Canada v. Professional Institute of the Public Service of Canada, 2010 FC 578, at para 27.

C. Rebuttal Submissions of the Grievors

69  After receiving the grievors’ requests for payment as compensation for meal allowances, the employer denied them on the basis that, because meals are made available during sea trials, no separate entitlement to meal allowances exists under clause 25.05 of the collective agreement. Specifically, the employer held that only article 32  applied in the circumstances, to the exclusion of clause 25.05.

70  The issue to be decided is whether the grievors are entitled to be compensated in accordance with clause 25.05 of the collective agreement during sea trials. It is not, as now asserted by the employer, whether employees are entitled to be reimbursed their expenses when a meal is provided by the employer during a sea trial.

71  As for the employer's argument that clause 25.05 of the collective agreement uses the term "reimbursement," each grievance requested that, as corrective action, the grievors be paid for the meal allowances previously submitted to and denied by the employer.

72  At each level of the grievance procedure, and as agreed by the parties in the agreed statement of facts, clause 25.05 of the collective agreement was treated as a meal allowance to be paid by the employer during overtime. Until its written submission, the employer has argued that, for sea trials, only article 32 could apply, and not clause 25.05, referencing paragraph 2 of the agreed statement of facts (see paragraph 4 of this decision).

73 For example, in the first level response to the grievance in PSLRB File No. 566-02-2731, filed by Ms. Gill, about a sea trial during which the employer provided no meal, the employer, in denying Ms. Gill’s request for meal allowances under clause 25.05, responded as follows:

…

As meals are available "24/7" during the conducting of Sea Trials, there is no separate entitlement to meal allowances under Article 25, clauses 25.05 (a) and 25.05 (b) of the EL Collective Agreement. Employees conducting sea trials are fully compensated in accordance with Article 32.03 of the EL Collective Agreement – Sea Trials Allowance.

…

[Emphasis added]

74  Similarly, in its final-level response to the same grievance, the employer held as follows:

…

… I find that management's decision to not award meal allowance while on sea trial was done in accordance with the applicable articles of your collective agreement. Specifically, I find that Article 32 applies to this situation, not Article 25.

…

[Emphasis added]

75  The employer used virtually identical language in response to the grievances PSLRB File Nos. 566-02-3366, 5949, 2732 and 3367.

76 The employer attempts by its submissions to argue that the meal allowance provisions in clause 25.05 applies only in cases of reimbursement, when the employees in question incurred meal expenses. Curiously, the employer does not mention the paid meal breaks to which employees are also entitled under that provision.

77   In any event, the fact is that, until it made these submissions, the employer consistently denied each grievance on the basis that the meal allowance was not payable during sea trials, since clause 25.05 of the collective agreement did not apply to employees on sea trials; rather only article 32 applied.

78 The employer cannot now change the position it held at every level of the grievance procedure, and agreed to in the agreed statement of facts, by adding a new ground that had not previously been raised. The employer is estopped from taking the alternative position that clause 25.05 is limited to reimbursement for expenses incurred during overtime.

79 Allowing a complete change of grounds with respect to the employer's decision to deny the overtime meal allowance would undermine sound labour relations and would frustrate the grievance procedure, which is "designed to enable the parties to resolve the real issue between them at the earliest possible moment in a mutually acceptable manner" (Fuller Austin Insulation Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2103 (2002), 107 L.A.C. (4^th) 421 to 426 , at p 436),and would effectively amount to endorsing  a practice that could have misled the union in its processing of the grievance to adjudication.

80 The employer’s interpretation of the meaning of "reimbursement" is not applicable to the circumstances of this case. Rather, the payment contemplated by clause 25.05 of the collective agreement is more akin to an allowance that has been defined as a payment, the amount of which is arbitrarily determined and for the use of which the recipient need not account.

81 At no time in the processing of these grievances did the employer offer any indication that it expected receipts for incurred expenses, or that clause 25.05 of the collective agreement applied only in cases of reimbursement. On the contrary, the employer's position was that meal allowances were simply not awarded in the context of overtime worked during sea trials.

82  Furthermore, the employer's submission that article 32 of the collective agreement supersedes clause 25.05 simply cannot be maintained. Rather, the whole of the collective agreement should be considered when attempting to ascertain the parties true intent. Doing so shows clauses 23.05 and 25.05 and article 32 are intended to work together to provide unpaid meal breaks during regularly scheduled hours on a sea trial and for a paid meal break and compensation during overtime.

83 The rebuttal submission referred to the following authorities: Fuller Austin Insulation Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 2103; and Attorney General of Canada v. Professional Institute of the Public Service of Canada, 2010 FC 578.

IV. Reasons

84 The union bases its claim on clause 25.05, submitting that it only expressly excepts employees serving abroad with the Department of Foreign Affairs and International Trade. The employer disputes that claim for two reasons.

85 First is the employer’s submission that, even if the $10.50 meal allowances in clause 25.05 are not compensation precluded by article 32, the grievors are not entitled to them as they apply only to reimbursements. The grievors were not entitled to reimbursement, as they were provided with their meals free of charge.

86 The union objected that that submission was unfair, as arguing that clause 25.05 of the collective agreement would not apply in any event was an expansion of the grounds in the employer's grievance procedure replies and was not part of the discussions held at the different grievance procedure levels.

87 In support the union referred to Re Fuller Austin Insulation Ltd. In that case, the employer had terminated an employee by laying him off due to a lack of work. At the arbitration hearing the employer submitted that if it were found that it was not a true layoff and that it was in fact a dismissal, the grievance still could not succeed because the employer had the right to dismiss employees with just cause. The arbitration board held that the employer was not entitled at the arbitration stage to adopt such an alternative position. At page 436, it commented as follows:

Employers may, depending on the circumstances, be prevented at arbitration from changing or expanding the grounds relied upon for termination. While some leeway is necessary, there is concern that to permit a complete change of grounds for termination undermines sound labour relations and would frustrate the grievance procedure…

88 In my view that case dealt with a much different situation. It involved a termination of employment in which an employee is entitled to know the grounds for his or her dismissal.

89 In this case the union is objecting to an additional argument being advanced in the interpretation of the collective agreement language. The test that is well established by the case law is whether or not the new grounds alter the nature of the grievance. There is a world of difference between altering the nature of the grievance and providing an additional argument on the interpretation of a clause that was always in issue. A new argument does not alter the grounds upon which the grievance was based. If the union was truly taken by surprise, the remedy would be to request an adjournment to consider the new argument, not to ask that the grievance be dealt with on the basis of an argument that might give a faulty interpretation to the clause in issue. The parties are entitled to clarify or refine their arguments during the grievance process and even at adjudication and doing so does not amount to changing the nature of the grievance.  In my view, the employer is entitled to make the submission that the use of the word "reimburse" shows an intention that the payments were not meant to be an allowance.

90  There is also no basis for the union’s statement that the employer is estopped from making the submission. There was no representation by the employer that it would not make alternate legal arguments in support of its position of how the language of the collective agreement should be interpreted.

91 Therefore I considered that argument of the employer. It referred to the language in clauses 25.05(a) and (b) of the collective agreement that an employee  working three or more hours of overtime immediately before or after his or her scheduled shift is to be "… reimbursed his or her expenses for one (1) meal in the amount of … $10.50." It submitted that the words "reimburse" and "expense" have well-known meanings and that they are not used ambiguously in the collective agreement. The Canadian Oxford Dictionary defines them as follows:

Reimburse transitive verb 1. Repay (a person who has expended money). 2. Repay (a person's expenses).

…

Expense  noun 1. Cost incurred; payment of money. 2. (usu. in pl.) a costs incurred in doing a particular job etc. (will pay your expenses). b an amount paid to reimburse this (offered me $40 per day expenses).

[Emphasis in original]

92 The employer also referred to the Federal Court’s following comments made about the meaning of the term "reimbursement" in Professional Institute of the Public Service of Canada, at paragraph 27:

[27] The payment pursuant to the Registration Fees Article is, rather, a reimbursement. A reimbursement is different from the classes of payment discussed above, which all represent additions to an employee's basic pay. It is, according to the Canadian Oxford Dictionary, a "repay[ment]" of expenses incurred by a person. The fact that the Registration Fees Article uses the terms "reimbursement" and "reimburse", while not determinative, suggests that an employee will have to demonstrate that he or she has in fact paid professional fees before being compensated for such a payment; and compensation is a repayment of the amount paid out by the employee on account of such fees, albeit only up to a stipulated maximum. Reimbursement is a well-known and distinct type of payment, and had Parliament intended it to be covered by the Registration Fees Article, it could easily have said so. It did not.

93  The employer submitted that, if the grievors were provided with meals at the employer's expense, it was clear that they could not also be entitled to be "reimbursed [their] expenses for [a] meal", as stated in clause 25.05 of the collective agreement.

94 It is important to consider the context in which "reimbursed" is used. In Professional Institute of the Public Service of Canada, the Federal Court was determining whether reimbursing professional fees constituted additional remuneration, which was prohibited by the Expenditure Restraint Act, S.C. 2009 c. 2 s. 393. The Court considered that the term "reimbursed" suggested that an employee must demonstrate that he or she in fact paid the fees in question, following which compensation would be limited to a repayment of the amount paid, to a stipulated maximum.

95  The issue in this argument of the employer is the meaning of the phrase   "…reimbursed his or her expenses… in the amount of $10.50". Read by itself reimbursement has a well-established meaning requiring a repayment of an expenditure. Here however there appear to be two conflicting provisions. Assume for example that an employee during a meal break only spent $1.50 for a coffee. The use of the phrase "in the amount $10.50" rather than "up to $10.50" indicates the employee would be entitled to be paid $10.50. On the other hand the phrase "reimbursed his or her expenses" ties the reimbursement to the amount expended. What would be the purpose of using a fixed amount rather than saying "up to $10.50"? The most obvious purpose, given the relatively small amount being reimbursed,  would be to relieve the employees and the employer from having to account for the actual amount paid by the employee for a meal, eliminating the time and expense needed to process receipts. If that is the purpose of using a fixed amount it does not follow that the fixed amount should also be interpreted as creating an allowance that is payable in situations where there is no expenditure. The use in the same sentence of the phrase "reimbursed his or her expenses" shows that the payment is intended to be made in response to an expenditure. In situations such is in the present case, where free meals are provided, there is no expenditure and therefore no reimbursement, and no entitlement to the $10.50 payment.

96  The employer’s second argument as to why clause 25.05 of the collective agreement does not entitle the grievors to meal allowances is the statement in article 32.01 that employees working on sea trials "… shall be compensated in accordance with clause 32.03".

97 Clause 32.01 does not state that clause 25.05 does not apply to sea trials. It states only that compensation during sea trials is governed by clause 32.03. This means the non-compensatory provisions still apply.

98 That raises the question of whether the provision of paid meal breaks and the reimbursement of $10.50 in clause 25.05 of the collective agreement is compensation.

99 The first paragraph of clause 25.05 of the collective agreement states that "…employees working overtime will be granted meal breaks and compensated for meals as follows." The use of the term "granted" and "compensated" appear to indicate the provision of a benefit and a payment. The use of two different terms indicates that being granted a meal break is not compensation, even if the benefit being granted is a paid meal break. In other words an employee working during sea trials is entitled to take the meal breaks set out in clause 25.05. That meshes with clause 32.03 which contains no provisions for meal breaks.

100 On the other hand the use of the phrase "compensated for meals" prefacing the $10.50 payments indicates that those payments are compensation that are superseded and replaced by the compensation provisions in clause 32.03 of the collective agreement.

101 Therefore the grievors were not entitled to the $10.50 payments, referred to as the "meal allowances," while engaged in sea trials.

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

V. Order

103 The grievances are dismissed.

February 8, 2013.

William H. Kydd,
adjudicator