FPSLREB Decisions

I. Grievance referred to adjudication

1 The Public Service Alliance of Canada (“the bargaining agent”) filed a grievance with the Canada Border Services Agency (“the employer”) on August 16, 2010. The grievance was filed on behalf of a group of employees.

2 It is useful to set out the grievance, which reads as follows:

Grievance Details

We grieve that on August 2, 2010, management did not offer or attempt to call any BSO from the Port of Lansdowne for overtime to cover for an anticipated increase in traffic flow.

Management stated that, based on direction from RDG Vinette, they required additional staff to facilitate the traffic and congestion by canvassing other ports such as Prescott, Cornwall, Trenton and Ottawa, to allow for eight (8) lanes to be opened by 10:00hrs to 22:00hrs on Friday July 30, Saturday July31, Sunday August 1 and Monday August 2, 2010. This was to be done, “after our own overtime list had been exhausted”. On Monday August 2, 2010, there were 5 BSO’s from other ports who received 12 hour o/t shifts plus traveling working at the Port of Lansdowne. This omission had been brought to managements attention on Saturday July 31, 2010, and the situation was not rectified at that time.

Corrective Action Requested

All BSO’s on the Supplemental Form 19, who were eligible to work o/t on August 2, 2010 shall be compensated any and all equivalent hours which were staffed by BSO’s from outside the Port of Lansdowne.

[Sic throughout]

3 A supplemental “Form 19” was attached to the grievance submitted by the bargaining agent. It contained the names and signatures of 14 persons. It was not contested the named persons were border services officers (BSOs) working for the employer at the Port of Lansdowne in Ontario.

4 The collective agreement is between the Treasury Board and Public Service Alliance of Canada for the Border Services Group, expiry date June 20, 2011 (“the collective agreement”). Counsel for the bargaining agent noted clause 28.03(a) of the collective agreement was at issue. It is useful to reproduce the clause, which reads as follows:

Subject to operational requirements, the Employer shall make every reasonable effort to avoid excessive overtime and to offer overtime work on an equitable basis among readily available qualified employees.

II. Hearing

5 The grievance was scheduled for a hearing on February 20 and 21, 2013. However, the parties were able to agree on a statement of facts and the documentary evidence to be offered as evidence. Because of the efforts of counsel for the parties, the hearing concluded on February 20, 2013.

III. Issue

6 The issue is simply stated as follows: Did the employer violate clause 28.03(a) of the collective agreement?

IV. Facts

7 As noted, at the beginning of the hearing, the parties entered several exhibits and an “Agreed Statement of Facts,” which reads as follows:

AGREED STATEMENT OF FACTS

Treasury Board (Employer) and the Public Service Alliance of Canada (Bargaining Agent) agree that the following facts, relating to the above-referenced grievance are not in dispute:

1. In the lead up to a Civic Holiday long weekend, the Employer became aware that they required additional staff to handle increased traffic volume for Saturday, July 31, 2010, Sunday, August 1, 2010 and Monday, August 2, 2010.

2. It is uncontested that the Employer offered overtime to the BSOs at the Port of Lansdowne for shifts on July 31 and August 1, 2010 but failed to do so on August 2, 2010.

3. On August 2, 2010, five BSOs from outside the Port of Lansdowne each worked a 12 hour shift (a total of 60 hours).

4. On August 3, 2010, A/Chief Scott emailed all employees acknowledging and apologizing for the error. (copy of email attached as Tab 6 of the agreed book of documents)

5. At the Port of Lansdowne, the equitable offering of overtime is based on the fiscal period (12-month period).

6. It is uncontested that during the 12 month period of April 1, 2010 to March 31, 2011;

• a total of 36, 329 hours of overtime was worked at Port of Landsdowne (copy of Overtime report for 14 Grievors attached as Tab 7 of the agreed book of documents); and
• the average amount of overtime worked by the BSOs at the Port of Lansdowne was 427.40 hours (copy of Overtime report for 14 Grievors attached as Tab 7 of the agreed book of documents);

7. It is also uncontested that during this 12 month period the 14 Grievors worked a range of 468.92 to 425.94 hours. (copy of Overtime spreadsheet for 14 Grievors attached as Tab 8 of the agreed book of documents)

8. There were three exceptions to the previous paragraph:

1) Carole Dubeau only worked 410 hours of overtime during the period but was on leave for 558 hours during the 12 month period;

2) Mohammed Farhat worked only 365 hours of overtime but was on assignment at headquarters for 5 months of the 12 month period;

3) Jarret Johnson worked only 319 hours of overtime but was on education leave for 7 months of the 12 month period.

9. On August 16, 2010, the 14 Grievors filed grievance #102861, grieving a violation of article 28.03 of the Collective Agreement. The corrective action requested was that all of the Grievors who were eligible to work on August 2, 2010, be compensated for any and all equivalent hours which were staffed by BSOs from outside of the Port of Lansdowne (copy of the overtime policy attached as Tab 5 of the agreed book of documents).

8 In addition, the parties introduced as evidence a book of documents with eight exhibits and the collective agreement.

V. Summary of the arguments

A. For the bargaining agent

9 The bargaining agent stated this grievance was not about the equitable distribution of overtime but rather about the employer’s decision not to assign 60 hours of overtime on August 2, 2010 to the employees located at the Port of Lansdowne.

10 In analyzing clause 28.03(a) of the collective agreement, counsel for the bargaining agent submitted there were three aspects to consider. First, the employer was obliged to “make every reasonable effort to avoid excessive overtime”. Secondly, the employer must offer overtime on an equitable basis. Thirdly, the employer must ensure its offer of overtime on an equitable basis is made to “readily available employees”. Counsel for the union submitted it is the third aspect of this clause which has not been satisfied in this grievance.

11 During the fiscal year from April 1, 2010 to March 31, 2011, 36 000 hours of overtime were offered (Exhibit 1, Tab 7). The bargaining agent acknowledged the overtime hours were offered equitably among the employees at the Port of Lansdowne.

12 However, on August 2, 2010, 60 hours of overtime were given to 5 employees not assigned to work at the Port of Lansdowne. The bargaining agent argued these hours should have been offered to employees assigned to the Port of Lansdowne, in accordance with the obligations of clause 28.03(a) of the collective agreement.

13 The bargaining agent pointed to Exhibit 1, Tab 5, which it described as the procedure adopted by management at the Port of Lansdowne. In the statement of procedure or policy, “O/T Call-Out” is defined, and the bargaining agent alleged it was not followed on August 2, 2010.

14 The bargaining agent presented a decision rendered by the Public Service Labour Relations Board (“the Board”), which it submitted stands for the proposition a policy adopted by the employer respecting the application of a provision of the collective agreement limits the employer’s discretionary power. In this case, the bargaining agent argued the discretion of the employer to assign overtime was limited by the policy (Hunt and Shaw v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 65).

15 Although the bargaining agent submitted both parties agreed the reasonable period for allocating overtime on an equitable basis is 12 months, the case law also supports a similar conclusion (Armand v. Treasury Board (Solicitor General Canada, Correctional Service), PSSRB File No. 166‑02‑19560 (19900629), [1990] C.P.P.S.S.R.B. No. 24 (Q.L.)

16 And, the bargaining agent submitted the Public Service Staff Relations Board interpreted the same language and concluded an employer cannot restrict a group of employees from being offered overtime (Johnston et al. v. Treasury Board (Employment and Immigration), PSSRB File Nos. 166-02-17488 to 17490 (19880930)). Therefore, the bargaining agent argued the employer violated the collective agreement by not assigning the 60 hours of overtime on August 2, 2010 to employees working at the Port of Lansdowne.

17 Counsel for the bargaining agent argued this matter was not about a claim for overtime on a particular day but rather about the equitable distribution of the 60 hours of overtime the employer failed to offer to employees at the Port of Lansdowne (Lay v. Treasury Board (Transport Canada), PSSRB File No. 166-02-14889 (19861124)).

18 The bargaining agent submitted I should make a declaration the employer violated clause 28.03 of the collective agreement, and I should remain seized of the matter for 90 days to ensure the compensatory matters are dealt with appropriately.

B. For the employer

19 The employer submitted the issue is really one of equitability. Counsel for the employer referred me to the words “readily available” in clause 28.03(a) of the collective agreement. Eighty-five BSOs work at the Port of Lansdowne, and 14 are named in the grievance. However, according to the employer, no evidence was presented allowing me to conclude any of those employees were “readily available.”

20 In the employer’s view, this evidence would be necessary for the bargaining agent to be successful. Counsel for the employer submitted in the cases referred to by the bargaining agent, there was evidence employees were readily available for work.

21 The employer acknowledged the policy or procedure found in Exhibit 1, Tab 5, was not followed. In fact, counsel for the employer noted Mona Scott, acting chief admitted as much on August 3, 2010, the day after the error was made (Exhibit 1, Tab 6). However, the employer submitted there was no proprietary right to the 60 hours of overtime, and the administrative error does not necessarily mean the collective agreement was violated.

22 The employer argued the term “equitable” does not mean “equal,” as equitability should be assessed over time. Counsel for the employer submitted if an employer fails to call an employee to work overtime and there is an “equitability” clause in the relevant collective agreement the adjudicator must assess whether the employer’s error resulted in an inequitable distribution of overtime (Baldasaro and Thiessen v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54).

23 Furthermore, the employer suggested the principle of the equitable distribution of overtime refers to a range of overtime over an extended period, often, as in this case, a year (King v. Treasury Board (Revenue Canada - Customs and Excise), PSSRB File No. 166-02-28585 (19990819), [1999] C.P.S.S.R.B. No.111 (Q.L.).

24 The employer further submitted if an administrative error was made, as in this case, the adjudicator must consider the bigger picture when determining what remedy might be granted (Narbonne v. Treasury Board (Post Office Department), PSSRB File Nos. 166-02-12473 and 13059 (19821207), [1982] C.P.S.S.R.B. No. 198 (Q.L.).

25 Counsel for the employer referred me to a case involving the assignment of work to tugboats in Halifax harbour. He indicated in that case the employer assigned work to the wrong tugboat, and the employees of another tugboat arguably lost overtime opportunities. The employer argued the adjudicator’s approach is helpful in this case. The adjudicator concluded the equitable distribution of overtime cannot be determined on the basis of a single missed opportunity (Farcey v. Treasury Board (National Defence), PSSRB File No. 166-02-21050 (19920212) [1999] C.P.S.S.R.B. No. 22 (Q.L.).

C. Rebuttal of the bargaining agent

26 In rebuttal, counsel for the bargaining agent argued the cases referred to by the employer involved workers at the same site. However, in this case, the 60 hours of work were assigned to employees not working at the Port of Lansdowne.

VI. Analysis

27 I agree with both parties. Clause 28.03(a) of the collective agreement does not provide employees a right to overtime on a specific occasion. It provides for an equitable distribution of overtime which must be assessed over a reasonable period of time (see Narbonne, Farcey, Armand and King). In this case, the parties agreed the period to be one year.

28 The employer implemented a policy or procedure respecting the application of overtime (Exhibit 1, Tab 5). I agree with the bargaining agent it limits the employer’s discretionary powers (see Hunt and Shaw).

29 The email from Ms. Scott (Exhibit 1, Tab 6) acknowledges an error on the part of the employer with respect to following the procedure. This conclusion is confirmed in paragraph 4 of the “Agreed Statement of Facts.”

30 However, does an error by the employer with respect to following the procedure for overtime translate to a violation of clause 28.03(a) of the collective agreement?

31 In my view, it does not. The following explains why I have drawn this conclusion.

32 First, I accept the bargaining agent’s suggestion about the three aspects of clause 28.03(a) of the collective agreement. The employer is to make every reasonable effort to avoid excessive overtime, which is irrelevant in these circumstances.

33 The evidence before me confirms the employer made every effort to equitably distribute overtime over a 12-month period, which is the second aspect of the provision at issue.

34 Those conclusions narrow the scope of my analysis to the third aspect of the relevant clause of the collective agreement. Overtime must be equitably distributed among “readily available” employees.

35 The “O/T Call-Out Procedures” in the employer’s policy set out an order in which BSOs are to be offered overtime at the Port of Lansdowne. It also speaks to the averaging of overtime hours, but this portion of the policy is not of assistance in this analysis.

36 The employer was in error on August 2, 2010 in its application of the first part of the procedure.

37 So, how could a failure to follow the call-out order in the employer’s procedure result in a violation of clause 28.03(a) of the collective agreement?

38 In my view, it can do so only with proof of “readily available” employees working at the Port of Lansdowne.

39 No evidence before me establishes the named employees were “readily available” on August 2, 2010. As a consequence, on this basis alone I would dismiss the grievance.

40 I am not prepared to accept the bargaining agent’s invitation to declare the employer violated the collective agreement and then to consider whether any employees were “readily available” for the purposes of determining a remedy. Doing so would allow the bargaining agent the opportunity to correct a fatal flaw in its case. While it could be some or all the employees were “readily available” on August 2, 2010, without this evidence, I cannot conclude the employer violated the collective agreement, even though it admitted to failing to follow its policy.

41 Stated another way, the 60 hours the bargaining agent states this grievance is about might or might not have been offered to employees working at the Port of Lansdowne. This determination could be made only with evidence to suggest some of them were “readily available.” This evidence is necessary to determine whether clause 28.03(a) of the collective agreement was violated.

42 In coming to this conclusion, I am further buoyed by the case law suggesting adjudicators must consider the bigger picture when reference is made to equitable distribution (see Narbonne and Farcey).

43 I am cognizant the case law confirms an adjudicator must consider periods of time and not individual situations when considering the issue of equitable distribution. In other words, as the Board already concluded, “equitability” is not the same as “equality”.

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

VII. Order

45 The grievance is dismissed.

April 11, 2013.

George Filliter,
adjudicator