FPSLREB Decisions

I. Policy grievance referred to adjudication

1 This matter concerns a policy grievance filed by the Public Service Alliance of Canada (“the bargaining agent”) on November 14, 2011, pursuant to section 220 of the Public Service Labour Relations Act (“the Act”), enacted as section 2 of the Public Service Modernization Act, S.C. 2003, ch. 22, and clause 18.37 of the collective agreement signed on October 29, 2010 by the Canada Revenue Agency (“the employer”) and the bargaining agent for the Program Delivery and Administrative Services bargaining unit (“the collective agreement”).

2 The details of the policy grievance read as follows:

…

Details of the grievance

In August 2011, the Government announced the creation of Shared Services Canada (SSC) and transferred PWGSC IT employees to SSC effective August 4, 2011.

Like many other Departments and Agencies, the Canada Revenue Agency was unaware of this new initiative. In August, the CRA was not even sure if they would be involved. In September, it became clear that the CRA was going to be transferring some of its IT (employees) to this new SSC. A number of employees being transferred are PSAC members in the SP occupational group.

On October 5, 2011, the employer confirmed verbally to Bob Campbell, National President of UTE that the transfer of services was not a Workforce Adjustment situation. On October 18th, UTE (Chris Aylward) contacted Assistant Commissioner & CIO, Peter Poulin, to ask whether CRA intended to provide UTE with a list of the names of affected employees. The Union was advised that the names of employees being transferred to SSC could not be released due to privacy issues.

Grievance

It is the PSAC’s position that the Employer, Canada Revenue Agency (CRA), has breached Article 21.03 of the Collective Agreement and related articles as well as Appendix “C” “WORK FORCE ADJUSTMENT APPENDIX (WFAA) of the PSAC COLLECTIVE AGREEMENT”, specifically Section 1.1.9 and related articles by:
a.) failing to meaningfully consult the Union regarding the creation of Shared Services Canada and the transfer of CRA employees to SSC;
b.) Refusing to declare a WFA situation; and
c.) Failing to respect section 7.2 of Appendix C and all other related provisions.

Corrective actions:

The PSAC respectfully requests that the Board:

• Declare that Employer has breached the WFAA;
• Order that the Employer cease and desist from its ongoing violation of the collective agreement;
• Order that the Employer meet with PSAC representatives regarding the transfer of CRA employees to Shared Services Canada;
• Provide PSAC with any and all information relation to the WFA situation and the Alternative Delivery Initiative;
• Order the Employer to immediately issue a public declaratory statement that the transfer of Information Technology (IT) services and IT employees to Shared Services Canada (SSC) is an Alternate Delivery Initiative as defined in the Collective Agreement, specifically Part VII of Work Force Adjustment Appendix(WFAA)
• Order the Employer to immediately notify the PSAC as per section 7.2 of the WFA Appendix to the PSAC Collective Agreement.

The notice to the PSAC/UTE will include:
1) the program being considered for ASD;
2) the reason for the ASD; and
3) the type of aproach anticipated for the initiative (e.g. transfer to province, commercialisation).

• Order the Employer to meet with PSAC on an ongoing basis with respect to this WFA situation;
• Order the Employer immediately establish a Joint Work Force Adjustment-Alternative Service Delivery (WFA-ASD) committee as outlined in Section 7.2 of the WFAA to the PSAC Collective Agreement.

Such other relief as the PSAC may request and the Board may grant.

…

[Sic throughout]

[Emphasis in the original]

II. Summary of the evidence

3 The matter was scheduled to be heard on October 11, 2012, but on October 10, 2012, the parties requested that the matter proceed by way of written submissions. I granted the request.

4 An “Agreed Statement of Facts” was filed on November 15, 2012. It reads as follows:

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1. The parties are bound by the terms and conditions of the collective agreement between the Public Service Alliance of Canada and the Canada Revenue Agency — expiring October 31, 2012. This collective agreement includes a Workforce Adjustment Appendix to PSAC Collective Agreement at Appendix C of that agreement. (Exhibit “A”)

2. The Employer, the Canada Revenue Agency (“CRA”), is a separate agency listed in schedule V to the Financial Administration Act. A copy of the Canada Revenue Agency Act is included herein as Exhibit “B”.

3. The Union, Public Service Alliance of Canada (“the PSAC”), is an employee organization certified to represent employees of the CRA that are part of the Program Delivery and Administrative Services Group which is comprised of employees of the Management Group (MG-SPS) and of the Service and Program Group (SP). The SP Group was created as a result of the conversion of previous occupational groups including the PM, AS, CR and DA groups.

4. On August 4, 2011, the Prime Minister announced the creation of Shared Services Canada (SSC) (Exhibit “C”). This same day, Peter Poulin, the Assistant Commissioner and Chief Information Officer, Information Technology Branch of the CRA sent an e-mail containing the announcement to all employees of the Information Technology Branch (ITB) (Exhibit “D”).

5. On August 5, 2011, CRA forwarded the email found at Exhibit “C” to the Union of Taxation Employees (UTE), a component of the PSAC (Exhibit “E”).

6. On August 19, 2011, Mr. Poulin sent an e-mail to UTE providing an update on the establishment of SSC (Exhibit “F”).

7. On September 19, 2011, UTE became aware that information sessions were being held with employees of the ITB. UTE then contacted CRA and a conference call was set for September 21, 2011.

8. Representatives from UTE and CRA participated in the conference call on September 21, 2011. During this call, the CRA provided general information regarding the transfer of telephony, data network, emails, data centre and security services to SSC.

9. Representatives from both CRA and UTE attended a Joint Workforce Adjustment Committee meeting on September 26, 2011. UTE raised the issue of whether the employer would apply the Alternative Delivery Initiative provisions (ADI) of the Workforce Adjustment Appendix to the ITB transfer to SSC. CRA advised that they would provide a response at a later date.

10. On September 29, 2011, CRA provided UTE with another information email about SSC from Rob Wright, Acting Commissioner of the CRA. (Exhibit “G”)

11. On October 5, 2011, a meeting was held between representatives of UTE and CRA, including Cheryl Fraser, Assistant Commissioner Human Resources, CRA and Bob Campbell National President, UTE. During the meeting, CRA advised UTE that they would be provided with a list of the employees to be transferred to SSC once the list had been finalized and approved by Commissioner. CRA also provided the following draft documents to UTE: Questions and Answers for Canada Revenue Agency Employees on the Establishment of Shared Services Canada, Proposed Message from the Commissioner on Shared Services Canada and Key Messages (Exhibit “H”). CRA requested UTE’s feedback to the draft documents.

12. During the meeting of October 5, 2011, CRA also advised UTE that the ADI provisions of the WFA Appendix of the collective agreement would not be applied given that employees would be moved to SSC as a result of an Order in Council which supersedes the collective agreement.

13. On October 6, 2011 CRA provided UTE with revised versions of some of the draft documents referred to at paragraph 11. UTE was advised that this information could be shared with UTE’s Regional Vice-Presidents.

14. On October 18, 2011, Chris Aylward, 1^st National Vice President for UTE, contacted Peter Poulin to get an update on when CRA would provide UTE with a list of the names of employees to be transferred. Mr. Poulin indicated that as the list had not yet been finalized, CRA could not provide UTE with the list of names at that time.

15. On November 10, 2011, the PSAC filed a Policy Grievance pursuant to section 220 of the Public Service Labour Relations Act (Exhibit “I”)

16. Effective November 15, 2011, by Order-in-Council P.C. 2011-1297 pursuant to paragraph 2(a) the Public Service Rearrangement and Transfer of Duties Act, certain portions of the CRA were transferred to Shared Services Canada. Included as Exhibit “J” is a copy of Order-in-Council and included as Exhibit “K” is a copy of the Public Service Rearrangement and Transfer of Duties Act (“the PSRTDA”).

17. Also effective November 15, 2011, Regulations were issued under the authority of subsection 123(1) of the Public Service Employment Act deeming that the transfer of certain employees of the CRA was subject to the Block Transfer provisions set out in subsection 132(1) of the PSEA. Included as Exhibit “L” is a copy of the Public Service Employment Act and included as Exhibit “M” is a copy of the Transfer of Portions of the Canada Revenue Agency Regulations P.C 2011-1291.

18. On November 17, 2011, CRA provided UTE with a draft e-mail that would be sent by Peter Poulin to all employees of ITB on November 18, 2011 (Exhibit “N”).

19. On December 13, 2011, a meeting was held between CRA management and UTE to share the list of CRA employees proposed for transfer to SSC. The list indicated that approximately one hundred (100) employees of the CRA employed in the SP occupational group were to be transferred to SSC.
Management explained that the list was shared under “confined consultation”. As per the CRA National Union-Management Consultation Committee Terms of Reference, “confined consultation” means that distribution is restricted to certain identified representatives and must not be disclosed further (Exhibit “O”).

20. On December 21, 2011, CRA confirmed to UTE that the list of employees transferring to SSC could be shared.

21. On January 25, 2012, the Assistant Commissioner of Human Resources, Cheryl Fraser, provided the final level response to the Policy Grievance (Exhibit “P”).

…

[Sic throughout]

[Emphasis in the original]

III. Summary of the arguments

A. For the bargaining agent

5 On November 30, 2012, the bargaining agent submitted its written argument. It reads as follows:

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Argument

Issues

The facts are set forth in the Agreed Statement of Facts between the Public Service Alliance of Canada (PSAC) and the Canada Revenue Agency (CRA).

The bargaining agent submits that the essential issue in this case is:

1. Whether the provisions of the workforce adjustment (WFA) appendix were triggered in order to determine the commencement of the CRA’s obligation under Appendix C (Workforce Adjustment) of the collective agreement between the PSAC and the CRA to engage in the process of advising and consultation with the PSAC.

What is a WFA situation?

This policy grievance (Exhibit “I”) addresses the central question of whether a workforce adjustment situation existed at the CRA when the grievance was filed on November 10, 2011. If a workforce adjustment situation is found not to have existed, then there can be no violation of the WFA appendix as this appendix only applies within the context of a workforce adjustment situation.

Appendix C (Exhibit “A”) of the collective agreement defines a workforce adjustment situation as follows:

is a situation that occurs when the Commissioner decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does not wish to relocate or an alternative delivery initiative.

An Alternative Delivery Initiative is defined as follows:

is the transfer of any work, undertaking or business to any employer that is outside the CRA.

When does the Commissioner Decide?

The bargaining agent submits that the decision made to determine which employees would be transferred was a decision made by the Commissioner of the CRA.

Federal organizations are grouped into various institutional forms. Under the Financial Administration Act (R.S.C., 1985, c. F-11), these various institutional forms are grouped into schedules. The CRA falls under Schedule V of the FAA which includes other separate agencies. Like any government department, separate agencies like the CRA are subject to federal government financial and budgetary controls.

Many Federal Public Service employees, through their respective collective agreements, are protected by WFA policies, which aim to protect employment status for indeterminate employees in the event of a lack of work, a discontinuance of a function, relocation or an alternative delivery initiative. Under the applicable collective agreement at CRA, a WFA situation is triggered “when the Commissioner decides”, that certain functions are no longer needed.

The Commissioner of a separate agency effectuates the policies of the government and manages his/her department accordingly. The Commissioner of the CRA is the operational head of the Agency (Exhibit “B”). It is the Commissioner, or his subordinates that determined which positions would no longer be needed at the CRA following the announcement of the creation of Shared Services Canada and the planned transfer of certain services. It was the Commissioner who determined which, and how many positions would be transferred to the new department (see paragraph 11 of the Agreed Statement of Facts).

The bargaining agent submits that the Commissioner did in fact make a decision with regards to the employees that would be transferred to Shared Services Canada. It is simply wrong to suggest that, by issuing an Order-in-Council, the role of the Commissioner of the CRA is superceded, and the CRA collective agreement is, thereby, disengaged.

Therefore the bargaining agent respectfully submits that if it is determined that the Commissioner made a decision that one or more employees would no longer be required beyond a specified date for any one of the reasons listed in the definition of a workforce adjustment: lack of work, discontinuance of a function, a relocation in which the employees does not wish to relocate or an alternative delivery initiative — then it must be found that a workforce adjustment situation exists.

Overview of Case law

There have been several Board decisions that have addressed the issue of whether or not a workforce adjustment situation existed.

In Public Service Alliance of Canada v. Canada Customs and Revenue Agency 2002 PSSRB 23, due to automation occurring in two sections of the Canada Customs and Revenue Agency (CCRA), jobs were to be eliminated in March 2002 and in March 2003 in order to increase productivity.

The employer did not consider this a workforce adjustment situation triggering the obligations set out in the collective agreement but rather a “workforce change”. In looking at the situation, the PSSRB held:

[68]There is no doubt that the automation of the two sections was a technological change, leading to the elimination of jobs to increase productivity. The services of a number of CR-03 employees will no longer be required in March 2002 and in March 2003. The situation was clearly a WFA situation.

[…]

[70]The collective agreement does not contemplate a phase in a WFA situation called a “workforce change” situation, during which the employer may chose to do whatever it wishes or with whom it will do it. If the employer has concerns about applying some parts of Appendix E to every technological change situation in its operations, the place to make changes is at the negotiation table.

From these statements we can develop some criteria the Board used to come to the conclusion that it was clearly a WFA situation despite the employer’s failure to declare it as such:

1. There was a change leading to elimination of jobs
2. There was a specified date when the services of employees would no longer be required.

The decision in Public Service Alliance of Canada v. Canadian Food Inspection Agency, 2004 PSSRB 155 has many similarities to our present matter. By Order-in-Council certain portions of the Operations Branch of the Canadian Food Inspection Agency (CFIA) were transferred to the Canada Border Services Agency. The Board concluded in that case that an Order-in-Council was not a decision made by the President of the CFIA that one or more indeterminate employees would no longer be required and therefore concluded that the workforce adjustment appendix was not triggered. An application for judicial review was also dismissed in Public Service Alliance of Canada V. Her Majesty The Queen In Right Of Canada As Represented By Canadian Food Inspection Agency (2005 FCA 366). The bargaining agent will be distinguishing this case in the analysis below.

In Public Service Alliance of Canada v. Canada Revenue Agency 2006 PSLRB 41 as part of the government-wide expenditure review, the Canada Revenue Agency (CRA) was required to cut $110 million from its budget. The CRA decided to phase out, over several years, counter service for cash payments so that taxpayers would be requested to make payments electronically, by mail or through their financial institutions.

The employer stated that they would be working in order to identify impacted positions and employees and that they were in the process of analyzing the impacts. The Board held in paragraph 51 of that case:

[51] …A WFA situation occurs when the Commissioner decides that the services of one or more indeterminate employees will no longer be required beyond a specified date. This definition requires certainty on the part of the Commissioner. He must first of all be certain that services will no longer be required (not that those services might not be required) and, secondly, that those services will no longer be required after a specified date…

and at paragraph 52, the Board goes on to say:

[52] In my view, the language in the WFA Appendix to the collective agreement supports the interpretation that before the WFA notice provisions are triggered, the CRA must have made a decision with enough precision to identify the work locations, the positions that will be affected and the date on which those positions will be affected…

Therefore, the criteria developed by the Board in that decision is that the Commissioner must make a decision with enough precision to:

1. Identify the work locations;
2. Identify the positions that will be affected;
3. Identify the date on which those positions will be affected.

An application for judicial review was dismissed in Public Service Alliance of Canada v. Canada (Attorney General) (2008 FC 485)

ANALYSIS

It is clear from the definition of Alternative Delivery Initiative in Appendix C of the collective agreement that the transfer of employees from CRA to SSC falls under this definition:

the transfer of any work, undertaking or business to any employer that is outside the CRA.

In their final level reply to the policy grievance, the CRA stated their position that the provisions of the WFA appendix of the collective agreement did not apply because the transfer was made by the Governor-in-Council and was not a decision of the Commissioner under the WFA appendix. (Exhibit “P”)

It is the bargaining agent’s position that a workforce adjustment situation existed before the Order-in-Council came into effect (Exhibit “J” and “K”). From review of the relevant case law, the Board has developed certain criteria in order to determine whether a workforce adjustment situation exists. In order to determine that a workforce adjustment situation exists, the CRA must make a decision that identifies the following:

1. The work locations;
2. The positions affected;
3. The date on which those positions will be affected.

What the case law also establishes is that the facts alone may determine whether such a decision has been made even when no clear decision has been communicated by the employer.

Due to the impending transfer of functions, the Commissioner had to make a decision as to which employees would be affected by the Order-in-Council. On September 29, 2011, Rob Wright, Acting Commissioner for the CRA wrote:

We have been working with SSC to clarify implementation plans. A number of CRA employees in IT and corporate functions, mainly in the National Capital Region and to a lesser degree in the regions, will be transferring to SSC in the near future. The process of identifying the areas and individuals involved is just beginning and will continue over the coming days…Our objective is to ensure a smooth transition for our employees while maintaining our high service standards… (Exhibit “G”)

On October 5, 2011, the CRA also provided a Questions and Answers document (Exhibit “H”). At page 1 of this document there is the question:

How will the decision be made to transfer positions and incumbents to the new organization? [emphasis added]

The answer given also seems to demonstrate that the CRA would be making the decision as to who would be transferred:

Over the coming weeks, the CRA will identify appropriate internal services and resources to be transferred to SSC.

Applying the criteria set out by the Board to the facts of the case, the bargaining agent submits that a workforce adjustment situation did exist before the Order-in-Council came into effect on November 15, 2011.

The definition of a workforce adjustment situation:

is a situation that occurs when the Commissioner decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does not wish to relocate or an alternative delivery initiative.

As demonstrated above, the Commissioner is responsible for human resources under s. 51 of the Canada Revenue Agency Act (Exhibit “B”). The CRA was responsible for making the decision as to which employees would be transferred to Shared Services Canada.

The definition of an Alternative Delivery Initiative:

is the transfer of any work, undertaking or business to any employer that is outside the CRA.

Therefore, the bargaining agent submits that the Commissioner had made a decision that the services of one or more indeterminate employees at CRA would no longer be required because they would be transferred to Shared Services Canada. This transfer can be described as an alternative delivery initiative. Given this, the bargaining agent submits that a workforce adjustment situation existed in accordance with the definition of workforce adjustment in Appendix C of the collective agreement (Exhibit “A”). As a result, Part VII of the Appendix C of the collective agreement should have been applicable given that this was an alternative delivery initiative.

Let us apply the criteria the Board has established to the facts in order to determine whether a workforce adjustment situation exists:

1. Identification of work locations

As stated in the communication of September 29, 2011 (Exhibit “G”), it had been determined that CRA employees mainly in the National Capital Region and to a lesser degree the regions would be transferring to Shared Services Canada.

2. Identification of positions affected

The communication of September 29, 2011 indicated that it would be CRA employees in Information Technology and Corporate function that would be transferring to Shared Services Canada.

3. The date on when those positions would be affected

In the Proposed Message from the Commissioner on Shared Services Canada (Exhibit “H”) it states:

As of the date of the Orders in Council, the President of Shared Services Canada will be assuming accountability for email, data centres, networks and telephony.

Therefore, the date would be the coming in force of the Orders-in-Council which were not in effect at the time.

The key distinction in Public Service Alliance of Canada v. Canadian Food Inspection Agency 2004 PSSRB 155 and this present matter is that the bargaining agent in this matter is making the argument based on events that occurred prior to the Order-in-Council coming into effect. The situation is more similar to that of Public Service Alliance of Canada v. Canada Customs and Revenue Agency 2002 PSSRB 23 in that the facts and context demonstrate that a workforce adjustment situation existed before the Commissioner had declared it and before the Order-in-Council came into effect.

Another clear distinction to be made between the two cases is that the collective agreement in the previous case did not provide for Alternative Delivery Initiatives — whereas this collective agreement does have Alternative Delivery Initiative in the definition of workforce adjustment.

The importance of declaring a workforce adjustment situation is that the subsequent actions of the parties occur within the parameters of the WFA appendix found in the collective agreement. This ensures that all employees know their rights and obligations and also ensures that the bargaining agent is able to ensure that the rights of its membership is protected.

For all these reasons, the bargaining agent submits that the grievance should be allowed and that the Board should declare that the employer has violated the workforce adjustment appendix. Furthermore, the bargaining agent submits that the Board order any other remedy that it deems appropriate in the exercise of its discretion and in accordance with the corrective measures requested in the policy grievance.

The bargaining agent reserves the right to provide further submissions following the reply of the employer in accordance with the timelines set by the Board.

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[Sic throughout]

[Emphasis in the original]

B. For the employer

6 On December 21, 2012, the employer submitted its written argument and reply to the written submission of the bargaining agent. It reads as follows:

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The following constitutes the Employer’s response to the written submissions provided by the Public Service Alliance of Canada (PSAC) on November 29, 2012, in the matter of their Policy Grievance alleging the Canada Revenue Agency (CRA) has violated the provisions of the Workforce Adjustment Appendix found at Appendix C of the Collective Agreement between the parties and reproduced at Exhibit “A” of the Agreed Statement of Facts.

It is the Employer’s position that the provisions of the Workforce Adjustment Appendix were not engaged in this matter, and therefore cannot be said to have been contravened.

Context

Creation of Shared Services Canada

On August 4, 2012, the Prime Minister announced the creation of Shared Services Canada (SSC) in order to streamline and identify savings in Information Technology. SSC was created to manage and transform IT infrastructure such as email, data centre and network services at a whole-of-government level.

The SSC organization became operational in two phases. Phase I, effective August 4, 2011, impacted employees of Public Works and Government Services Canada (PWGSC) only.  Phase II, effective November 15, 2011, impacted 43 other departments and agencies.

On November 15, 2011, pursuant to the Public Service Rearrangement and Transfer of Duties Act (PSRTDA), the Governor in Council transferred certain functions that were under the responsibility of the CRA to SSC by issuing the Order in Council reproduced at Exhibit “J” of the Agreed Statement of Facts. Pursuant to the Order in Council, the control and supervision of portions of the CRA, specifically the Email, Data Centre and Network Services Unit and the Email, Data Centre and Network Services Support Unit, were to be transferred to SSC effective November 15, 2011.

It is important to note that the Policy Grievance was filed on November 10, 2011, prior to the issuance of the above-noted Order in Council.

Status of the Employees

While the provisions of the PSRTDA do not address the status of the employees occupying positions in the portions being transferred, they do engage the provisions of the Public Service Employment Act (PSEA) that specifically address employee status:

132. (1) Nothing in an order made under the Public Service Rearrangement and Transfer of Duties Act shall be construed as affecting the status of an employee who, immediately before the coming into force of the order, occupied a position in a portion of the core public administration the control or supervision of which has been transferred from one department or other portion of the core public administration to another, or in a department that has been amalgamated and combined, except that the employee shall, on the coming into force of the order, occupy that position in the department or other portion of the core public administration to which the control or supervision has been transferred or in the department as amalgamated and combined.

(2) Where an order is made under the Public Service Rearrangement and Transfer of Duties Act, the Governor in Council may, by order made on the recommendation of the Treasury Board and where the Governor in Council is of the opinion that an employee or class of employees is carrying out powers, duties or functions that are in whole or in part in support of or related to the powers, duties and functions of employees referred to in subsection (1) and that it is in the best interests of the core public administration to do so, declare that the employee or class of employees shall, on the coming into force of the order, occupy their positions in the department or other portions of the core public administration where the employees referred to in subsection (1) are currently occupying their positions.

(3) For the purposes of this section, the core public administration consists of the departments, as defined in subsection 2(1), and the portions of the federal public administration named in Schedule IV to the Financial Administration Act.

As the CRA is a separate agency listed at Part V of the Financial Administration Act and not part of the core public administration, the above-noted provisions of the PSEA do not automatically apply. Section 123(1) of the PSEA allows the Governor-in-Council to apply the PSEA, or portions thereof, to an organization or any part of an organization to which it would not otherwise apply. In this instance, the Governor in Council exercised its authority under s. 123 (1) to make regulations authorizing the application of s. 132 to the CRA. These Regulations are reproduced at Exhibit “M” of the Agreed Statement of Facts.

Section 132 of the PSEA is explicit in stating that an Order made under the PSRTDA shall not be construed as affecting the status of an employee, except that the employee will, on the coming into force of the Order, occupy that position in the department or portion of the core public administration to which the control or supervision has been transferred.

From the moment the Order in Council, reproduced at Exhibit J of the Agreed Statement of Facts, came into force, the impacted employees occupied the positions in SSC. There was no loss in employment for the employees and there was no change in their employment status. These employees continued to occupy the same positions on November 15, 2011 that they had occupied on November 14, 2011, but in another organization. In short, the transfer of employees to SSC was made “by operation of law”.

Issue

The issue to be determined is whether the application of the Workforce Adjustment (WFA) Appendix was triggered prior to the above-described transfer of employees to SSC on November 15, 2011.

Argument

The Workforce Adjustment Appendix

The scheme of the WFA Appendix is dependent on a decision by the Commissioner. Specifically, the application of the Appendix is a triggered by the existence of a “workforce adjustment situation”. The Appendix defines this term as follows:

Work force adjustment — is a situation that occurs when the Commissioner decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does wish to relocate or an alternate delivery initiative.

The above-cited definition of “work force adjustment” is clear. It provides for one primary condition precedent before the WFA Appendix can be triggered: the Commissioner of the CRA must decide that the services of one or more employees are no longer required.

Decision in question was not the Commissioner’s

The decision at issue is the decision to transfer employees of the CRA Email, Data Centre and Network Services Unit and the Email, Data Centre and Network Services Support Unit. The decision to transfer these employees was not a decision of the Commissioner of the CRA. In fact, there is no authority under the PSRTDA or the PSEA for the Commissioner to make such a decision. Rather, this was a decision of the Governor in Council under the PSRTDA, as evidenced by the Order in Council found at Exhibit “J”.

While the Bargaining Agent submits that the decision made to determine which employees would be transferred was a decision made by the Commissioner of CRA as contemplated by the WFA Appendix, this position is not supported by the language of the WFA Appendix itself. More specifically, this is not a decision that the “services of one or more indeterminate employees will no longer be required beyond a specified date”. In fact, there was no such situation in this instance. At no time did the Commissioner of the CRA decide that the services of any of the employees were not required. As stated above, the decision to transfer functions from the CRA to SSC was made by the Governor in Council.

The Bargaining Agent relies on the PSAC v. CCRA 202 PSSRB 23 and PSAC v. CRA 2006 PSLRB to support its claims. However, these decisions are inapplicable to the case at hand given that the situation in both previous cases resulted from decisions by the Commissioner to reorganize internally. Unlike the case at hand, neither of these previous cases involved government-wide reorganization by the Governor-in-Council pursuant to the PSRTDA.

Implementation of the Order in Council

The Bargaining Agent has argued that the determination as to which employees would be transferred was made by the Commissioner of the CRA and that it was this determination that ought to have triggered the application of the WFA Appendix. To take the Bargaining Agent’s argument through to its conclusion, if the transfer of employees to the CRA were a “decision” of the Commissioner that services were no longer required, the Commissioner would have also had the authority to decide otherwise. This being the case, the Commissioner could have decided that the transfer could occur on a later date, or even not at all. This is clearly not the case, as the Commissioner had no power or authority to make this kind of decision.

The Employer does not dispute that it was aware of the proposed transfer prior to Order in Council of November 15, 2011 and made efforts to streamline the process the minimize disruption when it occurred. Exhibits “E”, “F”, “G”, “H”, “N”, “O”, and “P” of the Agreed Statement of Facts demonstrate the Employer’s efforts to share information with the Bargaining Agent and work with them to minimize disruption to the employees during the time prior to and after the Order in Council of November 15, 2012. However, the Employer’s knowledge of the intentions of the Governor in Council cannot be equated to make a “decision” under the WFA Appendix.

The Employer’s preparation for, interpretation and application of the Order in Council and identification of impacted employees is not a “decision” by the Commissioner that services of the employees are no longer required as required to trigger the application of the WFA Appendix. More specifically, the decision of the Governor in Council to transfer employees to SSC must not be confused with the Employer’s efforts to implement the Order in Council by identifying the individuals and positions impacted. As a deputy head, the Commissioner’s role is to implement the Order in Council. This responsibility is shared with the President of SSC. In so doing, neither deputy head is making a “decision” under the WFA Appendix.

In PSAC v. Canada (Canadian Food Inspection Agency), the Federal Court of Appeal found that the provisions of the collective agreement were not engaged as the President of the CFIA did not make the “decision” to transfer the employees. They found that the decision to consolidate various government departments under the CBSA was made by the Governor in Council under the authority of the PSRTDA. In response to the PSAC’s argument that the President was the one who decided which employees were impacted, the Court found that the effect of the Order in Council was to transfer each person occupying the function identified by the Order in Council and the President merely gave effect to the Governor in Council’s decision (paras. 25 to 27).

Purpose of the WFA Appendix

The Bargaining Agent has also taken the position that the transfer of employees from CRA to SSC falls within the definition of an Alternate Delivery Initiative (ADI) found at Part VII of the WFA Appendix. However, it is important to note that Part VII of the WFA Appendix is one part of the entire Appendix and must be considered and interpreted in that context.

The Employer submits that that this was not an ADI. A review of the provisions of Part VII supports this position. Paragraphs 7.2.1, 7.2.2, 7.3.2, 7.4.1, 7.5.1, 7.5.2, 7.7, 7.9.1 and 7.9.2 of Part VII contemplate employees receiving offers of employment or reasonable job offers. However, as stated above, in these circumstances, employees were deemed employees of SSC at the time of transfer due to the application of s. 132 of the PSEA. Moreover, paragraph 7.5.4 of Part VII provides that employees who accept a job offer from the new employer will have their employment terminated on the date which the transfer occurs. It is clear that the requirement to terminate an employee’s employment with CRA and appoint him or her to a position at SSC would defeat the very purpose of s. 132 of the PSEA.

A review of the provisions of Part VII indicates that the provisions are inexorably linked to the remainder of the WFA Appendix, such that the ADI scheme is also dependent on a decision of the Commissioner of the CRA. That is, in order for Part VII or any other provision of the Appendix to apply, there must be a “work force adjustment situation”.

In the circumstances at hand, there was no workforce adjustment situation prior to the Order in Council of November 15, 2011, nor was there a workforce adjustment situation upon the issuance of that Order in Council. If there was no workforce adjustment situation, there can be no Alternative Delivery Initiative.

Conclusion

The Employer respectfully requests that the Policy Grievance be dismissed.

…

[Sic throughout]

[Emphasis in the original, French language version of legislation omitted]

C. Bargaining agent’s rebuttal

7 On January 3, 2013, the bargaining agent submitted its rebuttal argument. It stated as follows:

…

The following is the Bargaining Agent’s rebuttal to the Employer’s written submission dated December 20, 2012. The Bargaining Agent relies primarily on its November 29, 2012 submission, however wishes to make some clarification based on the Employer’s submission.

Status of the employees

The Employer states that from the moment the Order in Council came into force, the employees occupied the positions in Shared Services Canada (SSC). The further state that there was no loss in employment for the employees and there was no change in their employment status.

However, the Bargaining Agent submits that the change that did occur is that these affected employees were no longer employees of the CRA. In other words, their services were no longer required at the CRA because of a lack of work. This lack of work was created by the transfer of certain functions from the CRA to SSC.

The employer further submits that the decision of the Governor in Council to transfer employees to SSC must not be confused with the Employer’s efforts to implement the Order in Council by identifying the individuals and positions impacted. Although the Commissioner may not have determined that the transfer of functions should occur, the Commissioner did decide which specific employees would be impacted due to the fact that the CRA would no longer be performing certain functions.  Given that not every employee in the CRA was affected by the transfer, the decision on which employees would be affected was an extremely important one.

Commissioner’s decision

The Employer distinguishes the decisions in PSAC v. CCRA 2002 PSSRB 23 and PSAC v. CRA 2006 PSLRB 41 on the basis that these decisions are inapplicable to the case at hand given that the situation in both cases resulted from decisions by the Commissioner to reorganize internally.

However, the important fact to take out of the above cases is that a workforce adjustment situation can still be found even without the Commissioner having explicitly decided and declaring it as such. An examination of the context and situation may lead to the same conclusion that a workforce adjustment situation exists.

Furthermore, we respectfully submit that the Board should examine the timing of the events in this matter. The policy grievance was filed prior to the issuance of the Order in Council. Therefore, the Board should examine the context and situation at that time. The Bargaining Agent respectfully submits that on November 10, 2011, the context and situation was such that a workforce adjustment situation could be concluded.

…

[Sic throughout]

IV. Reasons

8 This case concerns an alleged violation of the collective agreement and the Work force Adjustment Appendix to that agreement. It is not in dispute that the Appendix is part of the collective agreement. The definition of Work force adjustment (Tab A, agreed statement of facts) reads as follows:

-is a situation that occurs when the Commissioner decides that the services of one of more permanent employees will no longer be required beyond a specified date because of a lack of work, the discontinuance of a function, a relocation in which the employee does not wish to relocate or an alternative delivery initiative.

9 Section 1.1.5 of the Work force Adjustment Appendix reads in part as follows:

1.1.5 When the Commissioner determines that the services of an employee are no longer required beyond a specified date due to lack of work or discontinuance of a function, the Commissioner shall advise the employee, in writing, that his or her services will no longer be required.

…

10 Pursuant to the Agreed Statement of Facts, “[o]n August 4, 2011, the Prime Minister announced the creation of Shared Services Canada (SSC) …”

11 Paragraph 17 of the Agreed Statement of Facts states that certain employees of the employer were deemed subject to the block transfer provisions of the Public Service Employment Act (PSEA), enacted by sections 12 and 13 of the Public Service Modernization Act. This is as a result of the Transfer of Portions of the Canada Revenue Agency Regulations, SOR/2011-246. It means that the status of those employees was deemed not to be affected by their transfer to Shared Services Canada.

12 Paragraph 16 of the Agreed Statement of Facts states that certain portions of the employer were transferred to Shared Services Canada (SSC) as of November 15, 2011. This is as a result of the Order Transferring to Shared Services Canada the Control and Supervision of Certain Portions of the Federal Public Administration in each Department and Portion of the Federal Public Administration known as the Email, Data Centre and Network Services Unit and the Email, Data Centre and Network Services Support Unit, SI/2011-95. That Order in Council states in part as follows:

…

His Excellency the Governor General in Council, on the recommendation of the Prime Minister, pursuant to paragraph 2(a) of the Public Service Rearrangement and Transfer of Duties Act, hereby transfers to Shared Services Canada, effective November 15, 2011, the control and supervision of the following portions of the federal public administration in each department and portion of the federal public administration set out in the schedule known as:

1. the Email, Data Centre and Network Services Unit; and
2. the Email, Data Centre and Network Services Support Unit.

…

[Footnotes omitted]

In other words, on November 14, 2011 (the day preceding the effective date of the transfer of the affected employees), the affected employees were employed by the employer. On November 15, 2011, those same employees became employed at the SSC by virtue of the Order in Council. The services of the employees were still required, and they simply moved from the employer – the Canada Revenue Agency – to another employer – the Treasury Board (SSC).

13 Nevertheless, the bargaining agent advanced the position that the employer had not applied the provisions of the Work force Adjustment Appendix and it requested appropriate relief.

14 The bargaining agent relies on Public Service Alliance of Canada v. Canada Customs and Revenue Agency, 2002 PSSRB 23, and Public Service Alliance of Canada v. Canada Revenue Agency, 2006 PSLRB 41, in support of its position. The employer states that:

…

… these decisions are inapplicable to the case at hand given that the situation in both previous cases resulted from decisions by the Commissioner to reorganize internally. Unlike the case at hand, neither of these previous cases involved government wide reorganization by the Governor-in-Council pursuant to the PSRTDA.

…

I agree with the employer's position in regards to those two cases cited by the bargaining agent. In each case the Commissioner made the decision to reorganize. Such was not the case here, and I find that the situation before me is very similar, if not identical, to the circumstances found in Public Service Alliance of Canada v. Canadian Food Inspection Agency, 2004 PSSRB 155.

15 At 2004 PSSRB 155, paragraph 3, an agreed statement of facts is detailed. It reads in part as follows:

…

4. Effective December 12, 2003, by Order-in-Council 2003-2065, SI/2003-217 and pursuant to the Public Service Rearrangement and Transfer of Duties Act, certain portions of the Operations Branch of the Canadian Food Inspection Agency were transferred to the Canada Border Services Agency (“the CBSA”). The CBSA is a portion of the Public Service for which Treasury Board is the Employer. Included as Exhibit “D” is a copy of Order-in-Council and included as Exhibit “E” is a copy of the Public Service Rearrangement and Transfer of Duties Act (“the PSRTDA”).

5. Also effective December 12, 2003, Regulations were issued under the authority of paragraph 36(1)(b) of the Public Service Employment Act deeming that the transfer of employees of the CFIA, in those portions of the Operations Branch that provide passenger and initial import inspection services performed at airports and other Canadian border points other than import service centers, to the CBSA was subject to the Block Transfer provisions set out in subsections 37.3(1) and (2) of the PSEA. Included as Exhibit “F” is a copy of the Public Service Employment Act and included as Exhibit “G” is a copy of the Transfer of Portions of the Canadian Food Inspection Agency Regulations, SOR/2003-430.

6. On December 12, 2003, approximately 90 indeterminate and term employees of the CFIA employed as Inspectors in the PM and EG occupational groups ceased to be employees of the CFIA and became employees of the Treasury Board.

…

10. On the same date, an e-mail was sent to Inspectors subject to the transfer explaining the creation of the CBSA. It advised that those activities related directly to the discharge of passenger and initial import inspection services for animals, plants and food (not including the work of the import service centers) would be moved to CBSA. The majority of these resources operate at border crossings, airports and seaports. Another e-mail forwarded the same date advised all employees of the CFIA of the transfer. The e-mail also attached a Questions and Answers document. Included herein as Exhibit “I” is a representative copy of the e-mails from Richard B. Fadden to employees, together with a copy of the Q&A attachment to that e-mail.

11. The creation of the CBSA and the decision to transfer certain duties and functions formerly performed by the CFIA through its employees to the new CBSA was made by the Governor-in-Council, on recommendation by the Prime Minister. The President of the CFIA or his delegates are responsible for identifying the positions and individuals affected by the Order-in-Council in order to determine which employees were, and ceased to be on December 12, 2003, employed by the CFIA and become employed with the CBSA.

12. Prior to December 12, 2003, the President or his delegates identified which positions would be transferred to the CBSA. These employees were then informed by e-mail and by letter, on December 12, 2003, that their position would be transferred from the CFIA to the CBSA.

13.  Before December 12, 2003, or thereafter, the CFIA has not engaged in consultation with the PSAC as contemplated in Part I, articles 1.13, 1.1.10, or Part II, 2.1 of the Employment Transition Policy. The reason that such consultation has not occurred was communicated to the President of the Agriculture Union (“the AU”), Yves Ducharme, as well as to other AU representatives such as Bob Kingston 1st National Executive Vice-President of the AU. The reason given was that the ETP was not triggered by the transfer.

…

The “ETP” refers to a document entitled the “Employment Transition Policy.” It appears to be a precursor to the Work force Adjustment Appendix in that it defines an “employment transition” as follows:

Employment transition is a situation that occurs when the President decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work or the discontinuance of a function within the Agency. Such situations may arise for reasons including but not limited to those identified in the Policy section above.

The Public Service Staff Relations Board’s reasons are found commencing at paragraph 10 and state as follows:

[10] As a starting point in deciding this reference, I must determine whether the provisions of the ETP were triggered by the decision of the Governor in Council on December 12, 2003, to transfer certain positions from the CFIA to the newly created CBSA. I agree with the employer that this constitutes a threshold issue which must be determined by the Board.

[11] The provisions of the ETP are clear and unambiguous. An employment transition situation occurs “when the President decided that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work or the discontinuance of a function within the Agency”.

[12] The decision to transfer positions from the CFIA to the CBSA was made by the Governor in Council on the recommendation of the Prime Minister of Canada (tab D, agreed statement of facts).

[13] The fact that the President of the CFIA may have been involved in discussions surrounding the implementation of the Order-in-Council does not negate the fact that the decision to transfer was not his in the first place. I agree with the employer when it states that: “Applying the Order-in-Council and identifying employees to be transferred as a result of it is not a ‘decision’ by the President that services are no longer required.”

[14] With respect to the vires of the regulation purporting to make applicable the “block transfer” provisions of the Public Service Employment Act to the facts of this case (tab G, agreed statement of facts), I find nothing in the documentation provided that would allow me to come to the conclusion that the regulation is ultra vires.

[15] Paragraph 36(1)(b) of the PSEA clearly authorizes the Governor in Council to make regulations “applying all or any of the provisions of the PSEA that do not otherwise apply (…) to any portion or part of any portion of the Public Service”, which by definition includes all Departments and portions of the public service of Canada specified in Parts I and II of Schedule I to the PSSRA. I agree with the employer that the words “notwithstanding any other Act” in paragraph 36(1)(b) of the PSEA “are simply a legislative method to ensure that a regulation passed under 36(1(b) cannot be challenged as being ultra vires another Act”.

…

The reference was accordingly denied but was referred to the Federal Court of Appeal for judicial review.

16 In Public Service Alliance of Canada v. Canadian Food Inspection Agency, 2005 FCA 366, the Federal Court of Appeal dismissed the judicial review application that the bargaining agent had filed to challenge 2004 PSSRB 155, stating in part as follows:

…

[23] That said, I am of the view that regardless of the standard, the PSSRB had the discretion to hold that the ETP was not triggered when employees of the CFIA were transferred to the CBSA. As the applicant itself recognizes, the primary purpose of the ETP is to minimize the impact of job loss. In this case, no employee lost his or her job as a result of the Order-in-Council as all affected employees were deemed to be employees of the CBSA as of December 12, 2003 (ETP, Applicant’s Record, Volume 1, Tab 2, at page 105).

[24] More significantly, an “employment transition” is defined in the collective agreement’s ETP as:

a situation that occurs when the President decides that the services of one or more indeterminate employees will no longer be required beyond a specified date because of a lack of work or the discontinuance of a function within the Agency. Such situations may arise for reasons including but not limited to those identified in the Policy section above. [Emphasis added.]

[25] In this case, the President of the CFIA did not decide. The decision to consolidate various government functions under the authority of the CBSA was made by the Governor-in-Council under the authority of the PSRTDA.

[26] Counsel for the applicant agreed that the effect of the Order-in-Council was to transfer functions, but argued that the President was the one who decided which persons were affected. With respect, the effect of the Order-in-Council was to transfer each person occupying the function identified by the Order-in-Council, and the President merely gave effect to that decision.

[27] The Block Transfer provisions of the PSEA are explicit in stating that an Order made pursuant to the PSRTDA shall not affect the status of an employee, other than the fact that the employee shall be deemed to occupy the position in the new department. It follows that the PSSRB was on solid ground when it held as a threshold issue that the circumstances did not meet the definition of “employment transition” as found in the ETP.

[28] I would dismiss the application with costs in favour of the respondent.

…

[Emphasis in the original]

17 In its written submissions filed in this matter, the bargaining agent recognized that there were many similarities between 2004 PSSRB 155 and the case before me, but sought to distinguish them. It wrote as follows:

…

The key distinction in Public Service Alliance of Canada v. Canadian Food Inspection Agency 2004 PSSRB 155 and this present matter is that the bargaining agent in this matter is making the argument based on events that occurred prior to the Order-in-Council coming into effect. The situation is more similar to that of Public Service Alliance of Canada v. Canada Customs and Revenue Agency 2002 PSSRB 23 in that the facts and context demonstrate that a workforce adjustment situation existed before the Commissioner had declared it and before the Order-in-Council came into effect.

Another clear distinction to be made between the two cases is that the collective agreement in the previous case did not provide for Alternative Delivery Initiatives — whereas this collective agreement does have Alternative Delivery Initiative in the definition of workforce adjustment.

The importance of declaring a workforce adjustment situation is that the subsequent actions of the parties occur within the parameters of the WFA appendix found in the collective agreement. This ensures that all employees know their rights and obligations and also ensures that the bargaining agent is able to ensure that the rights of its membership is [sic] protected.

…

[Emphasis in the original]

While I agree with the submissions of the bargaining agent that there are differences between 2004 PSSRB 155 and the matter before me, I do not agree that those differences are significant. In my opinion, the major reason 2004 PSSRB 155was dismissed by the Public Service Staff Relations Board was that “[t]he decision to transfer positions from the CFIA to the CBSA was made by the Governor in Council on the recommendation of the Prime Minister of Canada …”: see paragraph 12. On appeal, the Federal Court of Appeal dismissed the application for judicial review, stating in part, at 2005 FCA 366, para 26, as follows:

[26] … With respect, the effect of the Order-in-Council was to transfer each person occupying the function identified by the Order-in-Council, and the President merely gave effect to that decision.

The Federal Court of Appeal also noted, at paragraph 23, as follows:

[23] … In this case, no employee lost his or her job as a result of the Order-in-Council as all affected employees were deemed to be employees of the CBSA as of December 12, 2003 …

Further on, at paragraph 27, the Federal Court of Appeal wrote as follows:

[27] The Block Transfer provisions of the PSEA are explicit in stating that an Order made pursuant to the PSRTDA shall not affect the status of an employee, other than the fact that the employee shall be deemed to occupy the position in the new department. It follows that the PSSRB was on solid ground when it held as a threshold issue that the circumstances did not meet the definition of employment transition as found in the ETP.

18 These same critical elements are found in the case I am to decide. In its written submission, the employer states as follows:

…

Section 132 of the PSEA is explicit in stating that an Order made under the PSRTDA shall not be construed as affecting the status of an employee, except that the employee will, on the coming into force of the Order, occupy that position in the department or portion of the core public administration to which the control or supervision has been transferred.

From the moment the Order in Council, reproduced as Exhibit J of the Agreed Statement of Facts, came into force, the impacted employees occupied the positions in SSC. There was no loss in employment for the employees and there was no change in their employment status. These employees continued to occupy the same positions on November 15, 2011 that they had occupied on November 14, 2011, but in another organization. In short, the transfer of employees to SSC was made “by operation of law”.

…

So, in this case, no employee lost his or her job as a result of the Order in Council, as all affected employees became employed at the SSC, effective November 15, 2011.

19 Another critical similarity between the findings of the Federal Court of Appeal in 2005 FCA 366 and this case concerns the application of section 132 of the PSEA. That section relates to “Block Transfers” and states as follows:

132. (1) Nothing in an order made under the Public Service Rearrangement and Transfer of Duties Act shall be construed as affecting the status of an employee who, immediately before the coming into force of the order, occupied a position in a portion of the core public administration the control or supervision of which has been transferred from one department or other portion of the core public administration to another, or in a department that has been amalgamated and combined, except that the employee shall, on the coming into force of the order, occupy that position in the department or other portion of the core public administration to which the control or supervision has been transferred or in the department as amalgamated and combined.

(2) Where an order is made under the Public Service Rearrangement and Transfer of Duties Act, the Governor in Council may, by order made on the recommendation of the Treasury Board and where the Governor in Council is of the opinion that an employee or class of employees is carrying out powers, duties or functions that are in whole or in part in support of or related to the powers, duties and functions of employees referred to in subsection (1) and that it is in the best interests of the core public administration to do so, declare that the employee or class of employees shall, on the coming into force of the order, occupy their positions in the department or other portions of the core public administration where the employees referred to in subsection (1) are currently occupying their positions.

(3) For the purposes of this section, the core public administration consists of the departments, as defined in subsection 2(1), and the portions of the federal public administration named in Schedule IV to the Financial Administration Act.

As pointed out as follows in the employer’s written submissions:

…

As the CRA is a separate agency listed at Part V of the Financial Administration Act and not part of the core public administration, the above-noted provisions of the PSEA do not automatically apply. Section 123(1) of the PSEA allows the Governor-in-Council to apply the PSEA, or portions thereof, to an organization or any part of an organization to which it would not otherwise apply. In this instance, the Governor in Council exercised its authority under s. 123 (1) to make regulations authorizing the application of s. 132 to the CRA. These Regulations are reproduced at Exhibit “M” of the Agreed Statement of Facts.

…

There can be no doubt that section 132 of the PSEA applies to the employees transferred to the SSC. Indeed, the Federal Court of Appeal found in 2005 FCA 366 that the block transfer provisions of the PSEA applied to the employees of the Canadian Food Inspection Agency, and that the definition of “employment transition” was not met.

20 Further, the fact that in this case the Commissioner of the employer did not make the decision to transfer the employees, but that the transfer was done by Order in Council, leads me to find that the definition of “work force adjustment” has not been met. The bargaining agent argued that “… a workforce adjustment situation existed before the Order-in-Council came into effect …” I do not agree with that position. I have found that the definition of “work force adjustment” has not been met, so a work force adjustment situation could not have existed at any time, either before or after the Order in Council came into effect.

21 I note that the Work force Adjustment Appendix contains the following objective:

…

It is the policy of the CRA to maximize employment opportunities for permanent employees affected by work force adjustment situations, primarily through ensuring that, whenever possible, alternative employment opportunities are provided to them. This should not be construed as the continuation of a specific position or job but rather as continued employment.

…

I find it interesting that, even though I have determined that the Work force Adjustment Appendix does not apply in this situation, the objective of the Appendix has not only been met, but has been exceeded; everyone maintained their exact jobs.

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

V. Order

23 The policy grievance is dismissed.

March 14, 2013.

Joseph W. Potter,
adjudicator