FPSLREB Decisions

I. Group grievances referred to adjudication

1 On June 6, 2011, the Federal Government Dockyard Trades and Labour Council -East (“the bargaining agent”) filed 4 separate group grievances on behalf of 12 employees of the Department of National Defence (DND) working at Fleet Maintenance Facility Cape Scott in Halifax, Nova Scotia (“FMF Cape Scott”). The employees grieved the DND’s decision to place them on scheduled evening shift work, contrary to clauses 5.01 and 15.07 of a collective agreement between the Treasury Board (“the employer”) and the bargaining agent for the Ship Repair - East Group bargaining unit, which expired on December 31, 2011 (“the collective agreement”). Those provisions state as follows:

…

5.01  The Council recognizes and acknowledges that the Employer has and shall retain the exclusive right and responsibility to manage its operation in all respects and it is expressly understood that all such rights and responsibilities not specifically covered or modified by this Agreement shall remain the exclusive rights and responsibilities of the Employer.

Such rights will not be exercised in a manner inconsistent with the expressed provisions of this Agreement.

…

15.07  The Employer will schedule shift work only when necessary. On the occasion of shift on a project, the Employer will give to the employees and Council, as much notice as practicable prior to the commencement of shift work.

…

2 After receiving the employer’s final-level responses denying the group grievances, the bargaining agent referred these matters to the Public Service Labour Relations Board (“the Board”) for adjudication on February 20, 2013.

II. Summary of the evidence

3 In total, four witnesses were called by the parties to testify about the events that led to these grievances. The bargaining agent called Brian Lacey, a mechanics technician, Jim Logan, an electronics technician, and Brendon Cameron, also an electronics technician. The employer called Ian Mitchell, a technical services manager with the Weapons Division of FMF Cape Scott.

4 The grievors are part of the Ship Repair - East Group. They normally report to work on the day shift, which commences at 07:45 and ends at 16:15. On April 21, 2011, the Production Manager of FMF Cape Scott distributed a notice informing affected personnel of the implementation of an evening shift that would commence at 15:45 on April 26, 2011, and that would continue until 00:15, on April 30, 2011. This notification indicated that the evening shift was required to perform progress work on HMCS Iroquois, particularly alignments to the ship’s separate target illumination radars (STIRs) and to its lightweight radar optronic director (LIROD), as well as progress shop work and other work as directed by the technical services supervisors.

5 The STIRs and LIROD are essentially radars that control the ship’s gunfire capability by calculating the track, aim, timing and direction of missiles. Alignments of these radars are scheduled on a biyearly basis to ensure that HMCS ships are weapon certified. These alignments are part of a number of other planned trials and repairs that are regularly performed on ships to ensure their readiness for any assignment or mission they may be given.

6 All witnesses agreed that the STIRs and LIROD alignments must be performed at night because the sensitivity of the equipment requires a static state. In essence, the ship and its environment must be calm, which is more likely to occur at night. Rain, wind or dense fog can easily interfere with these alignments to the point of shutting down the work in progress. In perfect weather conditions, the alignments of the STIRs and LIROD, which are performed by electrical and mechanical technicians on separate nights, are normally completed within two to three nights. It was also agreed that the alignment work done by the Ship Repair - East Group was in support of the Engineers Group, which oversees such weapons alignments and trials.

7 According to Mr. Lacey, there was no necessity to schedule an evening shift in April 2011 as the work could have been performed on an overtime basis, as had always been the case in the past. In cross-examination, Mr. Lacey was presented with four different notices of evening shifts that were distributed on March 8, 2010, April 7, 2010, June 11, 2010 and October 15, 2010, all of which related to STIRs or LIROD alignments on three different ships. Mr. Lacey could not recall seeing or receiving those notices or being asked to work any of those shifts. In fact, he could not recall ever working an evening shift other than during the week of April 26, 2011.

8 As for his involvement in the alignment work scheduled for April 26-30, 2011, Mr. Lacey recalled doing some work on the first night, with engineers on-site, but having to stop because of heavy rain, which continued for the remainder of the scheduled shifts. The engineers, who were working overtime, were not called in because of the bad weather. As a result, the alignment of the STIRs and LIROD could not be completed that week. Mr. Lacey was not asked to work on any of the other evening shifts in May 2011.

9 Mr. Logan also questioned the necessity of doing the work on an evening shift since the engineers were called in only on an overtime basis and would likely not be called in if the weather were inclement. He testified that STIRs and LIROD alignments had been done by his bargaining unit on an overtime basis in the past and recalled seeing the four 2010 evening-shift notices.

10 Mr. Logan worked the evening shifts scheduled for April 26-30, 2011, as well as the evening shifts scheduled during the following week, which were to end at 00:15 on May 7, 2011. He also worked the evening shift commencing at 15:45 on May 9, 2011, and ending at 00:15 on May 10, 2011, and on the evening shift commencing at 15:45 on May 18, 2011, and ending at 00:15 on May 19, 2011.

11 According to Mr. Logan, bad weather prevented him and his co-workers from going ahead with the planned alignment work. Instead, he worked on a number of small projects that had little or nothing to do with aligning the STIRs and LIROD, including inventory work, refurbishing work, day shift work and making amendments to the “book muster,” a comprehensive operational manual. In cross-examination, he admitted that weapon certification was a comprehensive process and that a lot of back-end work had to be done before the alignment could take place. Mr. Logan recalled being able to start working on the alignments during the fourth scheduled evening shift (of May 18-21, 2011) but having to abort due to deteriorating weather. Another employee, Brandon Cameron, was called in on overtime to work on the alignment after his last shift on May 20, 2011. Mr. Cameron testified that the alignments were finalized on May 30, 2011, and that both STIRs and LIROD alignments were done on the same night, which was normal. All the employees present that night, including him, were working overtime. Although he did not work any of the scheduled evening shifts in question, he recalled being placed on evening shifts in the past on at least six occasions.

12 Mr. Mitchell was involved in the decision to schedule shift work in April 2011. In fact, he recommended introducing evening shifts for the STIRs and LIROD alignments to the production manager responsible for making that decision. According to Mr. Mitchell, the nature of the work and the fact that it had to be performed at night rendered shift work necessary. Mr. Mitchell also considered a number of other factors when making his recommendation, including the fact that the employer was expected, under clause 15.09 of the collective agreement, to give at least four hours’ advance notice to employees required to work overtime and to keep overtime to a minimum, that fatigue could become an issue if employees were required to work overtime until 02:00 or 04:00, having started their day shifts at 07:45, and that a work-life balance could be achieved easier through scheduled shift work.

13 This was not the first time that Mr. Mitchell resorted to shift work to align the STIRs and LIROD. He indicated that he had recommended evening shifts for such work in 2010, that two separate evening shifts had been scheduled to proceed with the alignments on HMCS Charlottetown in March and April of 2010, that a further four evening shifts had been scheduled for the alignments on HMCS St. Johns in June 2010, and that a subsequent four evening shifts had been scheduled for the alignment on HMCS Athabaskan in October 2010. While Mr. Mitchell admitted in cross-examination that the first of those four shifts had been the subject of a complaint under section 190 of the Public Service Labour Relations Act (“the Act”) by the bargaining agent, and while the bargaining agent filed an undated and unsigned complaint in evidence, no further evidence or argument was adduced by either party as to the outcome of this complaint.

14 Mr. Mitchell acknowledged that the 2011 alignment project on HMCS Iroquois was not a success and that it was never anticipated or intended that the shift work would be extended over a period of four weeks. According to him, a combination of poor and unpredictable weather, as well as equipment defects and failures, were to blame. Faced with those circumstances, all the employer could do, according to Mr. Mitchell, was keep employees occupied on other progress work that was required by the technical services supervisors.

15  Mr. Mitchell also acknowledged that engineers must be present for the alignments of the STIRs and LIROD and that they are normally required to work overtime to perform their work. However, he added that according to the engineers’ collective agreement, which is separate from the one that applies in this case, 28 days’ advance notice is required before scheduling any evening shifts, unlike the case at hand, in which only a few days’ notice must be given, according to clause 15.08 of the collective agreement. He also added that the engineers normally determined whether they would show up for these alignments late in the day, around 15:00 or so.

III. Summary of the arguments

A. For the grievors

16 The grievors argued that the meaning to be given to the expression “only when necessary” in clause 15.07 of the collective agreement is tantamount to “in extraordinary circumstances” or “with no degree of regularity,” which, according to the grievors, restricts the employer’s managerial right to schedule shift work.

17 The grievors contended that since the engineering division was ultimately responsible for the alignment work and since the engineers had not been put on evening shifts, there was no way of ensuring in advance that they would be present on the scheduled evenings shifts, a precondition for proceeding with the alignment work, which in turn rendered scheduling shifts for the grievors totally unnecessary. In the grievors’ view, if it was unnecessary to place the engineers on evening shifts to perform the required work, it was just as unnecessary to place them on such shifts.

18 The grievors added that the fact that the alignment work was ultimately completed through overtime, after four weeks of scheduled evening shifts, was an indication that the evening shifts were never necessary in the first place. They also referred to the fact that this type of work had normally been done through overtime before 2010 and that nothing had changed that would have suddenly rendered the evening shifts necessary. They specifically pointed to a failure by the employer to demonstrate any urgency that might have justified proceeding with an evening shift.

19 The grievors suggested that since the employer knew that the weather was inclement, which would likely have prevented them from performing the alignment work, there could have been no need to schedule the evening shift work.

20 Finally, the grievors contended that the fact that they ultimately ended up performing work that would normally be done during their regular day shifts on those evening shifts was an indication of how unnecessary it was to schedule evening shifts in the first place.

21 The grievors referred me to four authorities: Power v. Treasury Board (Transport Canada), PSSRB File No. 166-02-17064 (19880225), United Electrical Workers Local 524 v. Canadian General Electric Co. Ltd. (1957),7 L.A.C. 304, Lefebvre v. Treasury Board (Solicitor General Canada), PSSRB File No. 166-02-16101 and 16490 (19871023), and International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board (Department of National Defence), 2009 PSLRB 2. However, I found those authorities of little assistance, as outlined further in my reasons.

For the employer

22 The employer argued that the grievors had failed to meet their burden of establishing on balance that it had violated clause 15.07 of the collective agreement.

23 It contended that under article 5 of the collective agreement, it had the exclusive managerial right to manage its operations, including the right to make shift changes, and that that right had not been exercised in a manner inconsistent with the expressed provisions of the collective agreement when it scheduled evening shift work in April and May 2011, primarily because it was necessary at that time. It added that such a right ought not to be tampered with unless there is clear language in the collective agreement circumscribing it, which, according to the employer, is not so in this case.

24 The employer argued that since the evidence suggested that the engineers normally determined whether they would show up for the STIRs and LIROD alignments only at around 15:00, it would have been impossible for the employer to give its day-shift employees the four hours’ advance overtime notice required in clause 15.09 of the collective agreement had it opted to proceed by way of overtime rather than by way of an evening shift. It added that scheduling an evening shift was an effective and reasonable way of meeting the objective of clause 15.09(c) of the collective agreement by keeping overtime to a minimum.

25 The employer suggested that scheduling evening shift work was necessary in the circumstances and that the factors that prevented the scheduled work from being performed, i.e., the poor weather, the resulting failure of the engineers to show up, and the equipment defects and malfunctions, were all unknown to the employer when the decision to schedule shift work was made.

26 In support of its arguments, the employer referred me to Federal Government Dockyard Trades and Labour Council East et al. v. Treasury Board (Department of National Defence), 2012 PSLRB 118, Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, and Cooper v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 38.

IV. Reasons

27 The crux of these matters turns on whether it was necessary, in the circumstances of this case, to schedule evening shifts to proceed with aligning the STIRs and LIROD of HMCS ships. In coming to that determination, one must consider the circumstances warranting the scheduling of the evening shift or shifts in question, as well as the relevant provisions of the collective agreement.

28 Those collective agreement provisions are as follows:

…

5.01   The Council recognizes and acknowledges that the Employer has and shall retain the exclusive right and responsibility to manage its operation in all respects and it is expressly understood that all such rights and responsibilities not specifically covered or modified by this Agreement shall remain the exclusive rights and responsibilities of the Employer.

Such rights will not be exercised in a manner inconsistent with the expressed provisions of this Agreement.

15.07 The Employer will schedule shift work only when necessary. On the occasion of shift on a project, the Employer will give to the employees and Council, as much notice as practicable prior to the commencement of shift work.

…

15.09 The Employer will make every reasonable effort:

a. to distribute overtime fairly among available qualified employees;

b. to give at least four (4) hours’ advance notice to employees who are required to work overtime;

c. to keep overtime to a minimum.

…

29 It is worth noting that the bargaining agent did not argue that the employer was estopped from introducing an evening shift in April 2011 on the basis of past practice. In any event, the evidence did not disclose a past practice that could trigger estoppel.

30 Despite the fact that the bargaining agent filed in evidence a complaint it allegedly filed in 2010 or early 2011, I was not presented with any evidence as to the outcome of the complaint. I note however that it was filed following the introduction of an evening shift in March 2010 and that the complaint alleged it to be a violation of section 107 of the Act (the statutory freeze provision). The context at issue here is far different. I was also not presented with any evidence as to how the STIRs and LIROD were aligned in 2012 and 2013. This is somewhat surprising in light of the fact that the sole remedy being sought by the grievors is a declaration that the employer violated clause 15.07 of the collective agreement and that it ought not to proceed with evening shifts for future alignment projects. I can only assume that the grievors took no issue with how the employer dealt with these alignments in 2012 and 2013.

31 The uncontested fact that the alignment work must be performed at night makes it necessary for the employer to contemplate two possible courses of action, shift work or overtime, keeping in mind that it must, according to clause 15.08 of the collective agreement, make every reasonable effort to keep overtime to a minimum. The fact that the work could be done through overtime does not render scheduling shift work unnecessary, especially when one considers the requirement to keep overtime to a minimum and the fact that operational requirements will often force the employer to resort to overtime during the course of the year.

32 The fact that there was no guarantee that engineers would be on-site to oversee the alignments in question, in part because they operated on an overtime basis and in part because their decision of whether to show up is made on the day of the scheduled work and based on the weather, does not, in and of itself, render scheduling evening shift work for employees of the Ship Repair - East Group unnecessary. Engineers are subject to a different collective agreement and are represented by a different bargaining agent. In a perfect world, everyone would operate under the same rules, and all stakeholders would agree to one standard approach. Unfortunately, that is not so in this case, and the employer must do its best to interpret and apply different collective agreements and to deal with different bargaining agents.

33 As for the grievors’ suggestion that there could have been no need to schedule the evening shift work, since the employer knew that the weather was inclement at the relevant time, I must point out that no such evidence was led nor proven during the course of the hearing. In any event, a weather forecast is what it is, which is a prediction of how the atmosphere is likely to evolve in a given location and for a given period. A great number of unpredictable factors can affect the accuracy of forecasts. The bottom line is that most of the equipment on warships must be tried, tested and in some cases aligned, that the equipment in question had to be aligned at night, and that the weather could easily take a turn for the best or the worst. To suggest that weather forecasts should play a part in determining what is or is not necessary when scheduling evening shift work is simply not realistic or pragmatic.

34 My role is not to assess the necessity of the work that ultimately ended up being performed during the evening shifts because of the bad weather and of the resulting absence of the engineers. Rather, my assessment must focus on the necessity of performing the work that was contemplated. The fact that the employer’s decision to proceed with evening shifts turned out to be unsuccessful because of factors beyond its control, i.e., bad weather and defective equipment, is not and should not be an indicator that resorting to shift work was unnecessary. I am satisfied that the decision to schedule an evening shift to perform the required alignments of the ship’s STIRs and LIROD, which was eventually extended over a period of four weeks, was not done arbitrarily or with the intent of keeping employees on shift unnecessarily.

35 I am also satisfied that the employer was not required to demonstrate any urgency that justified proceeding with an evening shift. That is not how I interpret the word “necessary.”

36 As indicated earlier in this decision, I find the four authorities provided by the grievors of little assistance, as they do not apply directly to this case. For example, United Electrical Workers Local 524, dealt with the schedules that applied to employees who were engaged in “continuous operations” jobs. The paragraphs I was directed to had no connection with any of the relevant facts of the case before me.

37 In the second case referred to by the grievors, Power, this Board’s predecessor dealt with whether policies established unilaterally by the employer solely for financial reasons could be accepted as valid operational requirements. The grievors did not lead any evidence of that nature; nor was it established that the employer’s decision to resort to shift work in this case was motivated by financial reasons. In fact, the evidence showed that the employer incurred overtime costs during the scheduled shifts. Had the employer intended to avoid overtime at all costs, it could have easily scheduled a third night shift that would have run from 23:45 to 08:15, which it did not do.

38 While I was not referred to any specific passage of the decision in Lefebvre it dealt with the employer’s decision to deny two leave requests because of operational requirements. Finally, this Board’s decision in International Brotherhood of Electrical Workers, Local 2228,is easily distinguishable from the facts of this case. In that case, it was determined that the employer’s principal motive for invoking a provision of the collective agreement was to address a concern about an alarming level of overtime expenditures, that the employer had changed the employees’ “non-operating” status to that of “operating employees,” that the employer had never previously shifted the employees’ regular hours of work for sea trials in that fashion in the past, and finally, that the employer had not turned its mind to the specific circumstances of the sea trial to evaluate whether those circumstances warranted the decision to shift the grievors’ regular hours of work.

39 This case is not about whether the employer turned its mind to the circumstances of these alignments. Everyone was aware of the circumstances and of the fact that the work had to be performed at night.

40 Furthermore, this case is not about what constitutes an operational requirement and what does not. Rather, it deals with the broader concept of what is necessary. An operational requirement could be the reason invoked by an employer for rendering shift work necessary, but there they may be a number of other valid reasons, such as the fact that the work must be done at night in a static state.

41 Simply put, the fact that aligning the STIRs and LIROD must be done at night can make it necessary to resort to shift work. While resorting to overtime could in essence render shift work unnecessary, such an approach could easily be considered as running contrary to the employer’s requirement to make every reasonable effort to keep overtime to a minimum, a requirement the parties negotiated and agreed to in the collective agreement (clause 15.09).

42 The fact that the words “when necessary” are found in clause 15.07 of the collective agreement does not mean that the employer has forfeited its right or ability to schedule shift work. It simply means that the employer can exercise this right within certain parameters. In this case, I believe the employer exercised its managerial rights reasonably, in good faith and in a manner consistent with the expressed provision of the collective agreement. The fact that the work could have been, and eventually was, done through overtime, in my view, does not circumscribe the employer’s ability and right to resort to a similar evening shift in the future; nor should it.

43 Having carefully considered all the evidence presented by the parties, I conclude that the employer did not violate clause 15.07 or any other provision of the collective agreement when it introduced an evening shift in April 2011, to proceed with aligning HMCS Iroquois’ STIRs and LIROD.

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

V. Order

45 The group grievances are dismissed. I order files 567-02-112, 567-02-113, 567-02-114 and 567-02-115 closed.

April 7, 2014.

Stephan J. Bertrand,
adjudicator