FPSLREB Decisions

Heard at Kingston, Ontario,
February 3 and 4, 2015.

REASONS FOR DECISION

I. Individual grievances referred to adjudication and application before the Board

1        At the time of the events that are the subjects of her grievances, Sheree Lemoire (“the grievor”) was a correctional officer classified CX-1 and employed by the Correctional Service of Canada (“the employer”). In the evidence, correctional officers are categorized as “CO” or “CX”; I will use “CX” for this decision.

2         The grievor worked at Warkworth Institution in Campbellford, Ontario, and was covered by the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”) for the Correctional Services Group (expiry date: May 31, 2010; “the collective agreement”).

3        The grievances were referred to adjudication between November 2011 and January 2012. On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary

4        The grievor referred a number of grievances to the former Board. At the outset of the hearing, the grievor withdrew the grievance in file 566-02-6516.

5        I confirmed with the parties that seven grievances and one application were the subject of the adjudication. A chronology of each grievance (in order of when it was referred to adjudication) and the application is attached as an appendix to this decision.

6        In the seven grievances, the grievor alleged that on 19 days in 2010 and 2011, the employer hired other people for overtime when it should have hired her and that by doing so, it breached clause 21.10 of the collective agreement, which reads in part as follows:

21.10 Assignment of Overtime Work

The Employer shall make every reasonable effort:

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

(b) to allocate overtime work to employees at the same group and level as the position to be filled, i.e.: Correctional Officer 1 (CX-1) to Correctional Officer 1 (CX-1), Correctional Officer 2 (CX-2) to Correctional Officer 2 (CX-2) etc….

...

7        In three of the seven grievances, listed in this paragraph by file number, the employer made jurisdiction objections as follows:

1) 566-02-6258 (about May 11, 2011): the employer argued that the Board lacked jurisdiction because the grievance was untimely at the final level of the grievance process;

2) 566-02-6513 (about January 1 and 14, 2010): the employer argued that the Board lacked jurisdiction because the grievance was untimely at the first level; and

3) 566-02-6551 (about March 21 and 23, 2010): the employer argued that the Board lacked jurisdiction because the grievance was untimely at the first level.

8        As I mentioned earlier, the grievor also made an application (file 568-02-278), in which she requested an extension of time to file the grievance bearing file number 566-02-6258 at the final level of the grievance process in the event the Board upheld the employer’s objection.

9        At the hearing, the grievor testified and called as a witness Karrie Ruttan, the local grievance officer who had assisted her.

10        The employer called one witness, Tim Gunter, a correctional manager (CM).

11        Although the grievor referred to 19 days in total in her grievances, she presented evidence only about the following 8 days, all in 2010: January 14, March 23, April 6 and 9, May 10 and 12, August 18, and September 20. The eight days in question fell in two fiscal years: two in 2009-2010, and the remaining six in 2010-2011.

12        For the reasons set out later, I make the following findings in this decision:

1) At the hearing, the bargaining agent withdrew the grievance in file 566-02-6516; the file is therefore closed.

2) The Board has jurisdiction to consider the grievances in files 566-02-6513 and 6551 because they were filed in a timely manner.

3) The Board has jurisdiction to consider the grievance in file 566-02-6258 because the employer has not proven that it was transmitted late to the third level. However, the grievor provided no evidence and did not meet her burden of proof. Therefore, I deny the grievance in file 566-02-6258 and order the file closed.

4) Since the employer did not establish that the grievance in file 566-02-6258 was untimely, I order the application in file 568-02-278 closed.

5) The grievor has not met her burden of proving that the employer allocated overtime in contravention of clause 21.10(a) of the collective agreement.

6) The grievor has not met her burden of proving that the employer allocated overtime in contravention of clause 21.10(b) of the collective agreement.

7) The grievances in files 566-02-6513 to 6515, 6518, 6519, and 6551 are dismissed.

A. Timeliness questions

13        The employer argued that the Board had no jurisdiction to consider three of the seven grievances because they had been filed late at some point in the internal grievance process. It relied on clause 20.21 of the collective agreement, which states that if an employee fails to file a grievance within the time limit, he or she “... shall be deemed to have abandoned the grievance ...”. The grievor contended that all the grievances were filed in time.

1. Employer objections in files 566-02-6513 and 6551

14        According to clause 20.10 of the collective agreement, an employee could present a grievance at the first level under the following conditions:

... not later than the twenty-fifth (25^th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

15        The grievances in files 566-02-6513 (about January 1 and 14, 2010) and        566-02-6551 (about March 21 and 23, 2010) were both filed at the first level on             October 5, 2011.

16        The following is the sequence of events, according to the evidence:

1) the grievor advised the employer that she was ready and qualified to be hired for overtime on the four days at issue in January and     March 2010;

2) the grievor was not hired for overtime on those four days;

3) during that period, the employer did not post information about when overtime was worked and about which employees were hired to work it;

4) sometime in early summer or late fall in 2011, after speaking to other employees, the grievor became concerned that she was being bypassed for overtime, but she had no way to confirm it;

5) the grievor asked the bargaining agent to look into her concerns;

6) at the bargaining agent’s request, she provided it with a list of days on which she had advised the employer she was available and qualified to work overtime;

7) the bargaining agent gave her information that showed that on the days in question, other people had been hired for overtime; and

8) immediately upon receiving this information, she filed her grievances (October 5, 2011).

17        I find that the grievances were timely and that the Board has jurisdiction to hear and decide them.

18        The grievor never received any oral or written notice from the employer about its allocation of overtime on the four days in question. Therefore, the time limit started to run from the date on which the grievor became aware of the actions giving rise to the grievances. She stated that she became aware of the January and March 2010 actions in early October 2011, when she received the information from the bargaining agent.

19        She explained the delay as resulting from the fact that the employer did not post information about overtime.

20        The employer did not dispute the fact that it did not post information about overtime during that period. However, it argued that according to its policy, equitability in the allocation of overtime hours was assessed based not on single days but on an entire fiscal year. Therefore, since the four days in question were in the 2009-2010 fiscal year, the grievor had to file a grievance at the first level no later than the 25th day after April 1, 2010.

21        I do not accept that argument as it is not consistent with the wording of clause 20.10 of the collective agreement. On April 1, 2010, the grievor was not aware of the actions taken by the employer and therefore had no reason to file a grievance at that time.

22        The employer further declared that even if the Board accepted that the grievor did not know that she had been bypassed for overtime until October 2011, she should have raised her concerns sooner. It declared that it would not foster positive labour relations to allow her to file a grievance over a year-and-a-half after the matters in dispute occurred.

23        According to the evidence presented in this case, information about overtime, in particular when overtime hours were allocated and to whom, was not posted by the employer, and therefore was not readily available to the grievor. In my mind, that is a reasonable explanation for the delay in her becoming aware of the actions giving rise to the grievances.

2. Employer objection in file 566-02-6258

24        The grievance in file 566-02-6258 was about the allocation of overtime on May 11, 2011. Time limits were respected by both parties at the first level. The grievance was transmitted to the second level on May 19, 2011, and the second-level decision was made on August 9, 2011.

25        The grievor transmitted the grievance to the final level on October 3, 2011. On December 16, 2011, the employer denied the grievance, in part because it was transmitted late to the third level.

26        After the grievor transmitted the grievance to the second level, the parties agreed to place it in abeyance to allow time for the employer to share certain information with the grievor. I find that this period of abeyance came to an end when the employer made its second-level decision on August 9, 2011.

27        Clause 20.11 of the collective agreement stated that the grievor could submit the grievance to the next higher level “... within ten (10) days after that decision or settlement has been conveyed to ... her in writing.” The employer provided no evidence confirming when the grievor received the August 9, 2011, second-level decision in writing. Therefore, I find that the employer has not proven that the grievance in file 566-02-6258 was untimely at the third level.

28        The Board therefore has jurisdiction to consider the grievance in file 566-02-6258. However, as the grievor did not present evidence about this grievance, I deny it and order the file closed.

3. The application in file 568-02-278 (about May 11, 2011)

29        The grievor applied to the former Board for an extension of time in the event that it found the grievance in file 566-02-6258 untimely. As I find that the employer did not prove that the grievance was untimely, I order the application file                568-02-278 closed.

III. Merits

A. Introduction

30        One question must be answered: Did the grievor meet her burden of proving that the employer violated clause 21.10 of the collective agreement in its overtime allocations?

31        Clause 21.10 reads as follows in its entirety:

21.10 Assignment of Overtime Work

The Employer shall make every reasonable effort:

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

(b) to allocate overtime work to employees at the same group and level as the position to be filled, i.e.: Correctional Officer 1 (CX-1) to Correctional Officer 1 (CX-1), Correctional Officer 2 (CX-2) to Correctional Officer 2 (CX-2) etc.;

However, it is possible for a Local Union to agree in writing with the Institutional Warden on an [sic] another method to allocate overtime.

and

(c) to give employees who are required to work overtime adequate advance notice of this requirement.

32        The grievor argued that the employer breached both clauses 21.10(a) and (b).

33        In these matters, there was no local agreement about overtime allocation.

34        Employees were paid for overtime at either time-and-a-half (“1.5”) or double time (“2.0”), depending on the circumstances (clauses 21.12 and 21.13 of the collective agreement). For example, employees received double time after eight hours of overtime in a calendar day or on a second or subsequent day of rest. Neither party disputed the calculation of the rates of pay.

35        In addition to the collective agreement, the employer was required to follow the “CSC Bulletin 2009-40: National Direction - Policy on the Management of Overtime for Correctional Officers” (“the national direction”). It set out the following criteria for the employer to follow when allocating overtime:

1) fill overtime needs with voluntary overtime before using involuntary overtime;

2) make every reasonable effort to offer overtime on an equitable basis among readily available qualified employees (under clause 21.10 of the collective agreement and s. 3 of the national direction);

3) make every reasonable effort to allocate overtime to employees at the same group and level as the position to be filled (under clause 21.10 of the collective agreement and s. 2 of the national direction); however, it must consider offering voluntary overtime outside the applicable rank before using involuntary overtime (under Annex A of the national direction);

4) minimize cost when overtime is required (under s. 2 of the national direction);

5) take into account the amount of overtime offered and recorded to each employee (under Annex A of the national direction);

6) normally offer short periods of overtime (three hours or less) to the employee working the shift contiguous to the overtime being offered and who has the least number of overtime hours worked (under Annex A of the national direction);

7) make exceptions in emergency and crisis situations; and

8) ensure that overtime offers are made in keeping with health and safety considerations.

36        A computerized database called the “Scheduling and Deployment System” (SDS) was used to administer the process set out in the collective agreement and the national direction. Generally, allocating overtime involved the following steps:

1) the employee filled out the SDS “Display Employee Overtime Availability”form (“AF”) to advise the employer that he or she was qualified and available for overtime for a certain date and shift;

2) the CM determined that he or she needed to hire an employee for overtime for a certain date and shift at a certain rank;

3) the CM consulted the SDS “Display Overtime Offering List” (“OL”), which had the names of all employees who had signed AFs for that shift;

4) different OLs were in place for different ranks, and names were ordered according to the number of overtime hours credited and the rate of pay that would apply;

5) the CM chose an employee using the criteria set out in the national direction;

6) the CM phoned the chosen employee, who either accepted or refused the overtime;

7) if the employee refused the overtime, the CM went to the next name on the list until he or she found a person who accepted the overtime;

8) if the CM did not find a volunteer, he or she ordered an employee to work the overtime;

9) the CM recorded the overtime allocation in the SDS; and

10) the SDS kept a record of all overtime allocation over a set period.

37        All overtime credited to each employee was recorded in the SDS. Overtime was credited when an employee worked it, was called and refused it, or could not be reached when the employer called.

38        The employer submitted that CMs had the discretion to create extra-duty posts for special needs. Mr. Gunter testified that extra-duty posts were unranked, meaning that a CM could fill them with either a CX-1 or a CX-2. Once created, the CM had the duty of entering the extra-duty posts into the SDS.

B. Evidence

39        Evidence was presented about overtime allocation decisions the employer made on the following eight days, as follows:

January 14, 2010:

1) The grievor worked a day shift (07:00 to 15:30).

2) She signed an AF for the evening shift, but her name did not appear on the CX-1 OL.

3) The grievor was hired for 4.25 overtime hours at 1.5 (15:30 to 19:45).

4) She was hired for a further 3.25 overtime hours at 1.5 (19:45 to 23:00), but this was cancelled.

5) DM (a CX-1), who was not on the CX-1 OL, was hired for 4 overtime hours at 2.0 (19:00 to 23:00). (Note: the grievor was not available when DM’s overtime started.)

6) DM’s overtime was incorrectly recorded as “voluntary” when it should have been “ordered to work”.

7) DB (rank in dispute) was hired for 16 overtime hours (07:00 to 14:00 and 14:00 to 23:00) in CX-1 positions. The grievor alleged that DB was a CX-2; however, the evidence appeared to show that he was a CX-1.

March 23, 2010:

1) The grievor worked a day shift (07:00 to 15:00).

2) She signed an AF for the evening shift, and her name was the second of 8 on the CX-1 OL at 1.5.

3) GH (a CX-1), although 6th on the CX-1 OL, was hired for 4 overtime hours at 2.0 (15:00 to 19:00). (Note: the grievor was not available when GH’s overtime started.)

4) VJ (a CX-2) had a regular day shift as a CX-2 external escort (07:00 to 16:00) and then was hired for 3 overtime hours at 1.5 (16:00 to 19:00) in an extra-duty escort post recorded as a CX-1 position.

5) The employer stated that GH and VJ were on a non-emergency extra-duty escort to pick up an inmate at a hospital. Mr. Gunter testified that to do it, their shifts were extended by creating extra-duty posts (the SDS did not allow CMs to record shift extensions). Although VJ was a CX-2, the CM recorded the extra-duty post as a CX-1 position.

April 6, 2010:        

1) The grievor worked a day shift (07:00 to 15:30).

2) She signed an AF for the evening shift, and her name was third of 10 on the CX-1 OL at 1.5.

3) MC (a CX-1), who was not on the CX-1 OL, was hired for 3 overtime hours (16:00 to 19:00) in a CX-2 position.

4) CB (a CX-2) was hired for 3 overtime hours (16:00 to 19:00) in a CX-1 position.

5) Mr. Gunter testified that to keep CB in the same unit for the overtime hours as she had worked in during the day, she (a CX-2) was put in a CX-1 position. He said that this was balanced by the fact that MC was a CX-1 and was hired for 3 overtime hours in a CX-2 position.

April 9, 2010:

1) The grievor signed an AF for the evening shift, and her name was the first of 6 on the CX-1 OL at 1.5.

2) SG (a CX-1), who was not on the CX-1 OL, was hired for 2 overtime hours on April 9. However, the evidence did not establish that this occurred on the evening shift because the SDS printout related to all shifts on April 9.

3) BV (a CX-1) was hired for 3 overtime hours (16:00 to 19:00) at 1.5. BV was not on the CX-1 OL for these hours.

May 10, 2010:

1) The grievor’s name was the first of two on the CX-1 OL at 2.0 for the day shift (07:00 to 16:00).

2) LF (a CX-1), the second name on the CX-1 OL at 2.0, was hired for 8 overtime hours (07:00 to 15:00).

3) DM (a CX-1), who was not on the CX-1 OL, was hired for overtime hours on May 10, 2010. However, the evidence did not establish when the OT hours were worked.

May 12, 2010:

1) The grievor signed an AF for the day shift, and her name was the 7th of 9 on the CX-1 OL at 2.0 (07:00 to 15:00).

2) AT (CX-2) was hired for 7 overtime hours in an extra-duty post recorded as a CX-1 position.

3) SG (CX-1), who was not on the CX-1 OL, was hired for 7 overtime hours in an extra-duty post recorded as a CX-1 position.

4) KM (CX-2) was hired for a CX-2 extra-duty post (interregional escort) (22:15 to 07:15; 07:00 to 14:00).

August 18, 2010:

1) The grievor signed an AF for the day shift, and her name was the last of 5 on the CX-1 OL (07:00 to 16:00).

2) JA (CX-2), who was not on the CX-2 OL, was ordered to work 12 overtime hours during the day shift in an extra-duty post recorded as a CX-1 position.

3) TG (CX-2), who was not on the CX-2 OL, was ordered to work 3 overtime hours during the day shift in an extra-duty post recorded as a CX-1 position.

4) KE (CX-2), who was not on the CX-2 OL, was hired for 10.5 overtime hours during the day and evening shifts (8 hours in an extra-duty post recorded as a CX-1 position for a medical escort, and 2.5 hours in an extra-duty post recorded as a CX-1 position for training). The employer stated that the 2.5 hours was an extension of KE’s medical escort shift, but it was entered into the SDS as training.

5) The employer stated that JA and TG were hired for extra-duty posts recorded as CX-1 positions to stay with an inmate in a Toronto, Ontario, hospital. Although it was not an emergency, it was a special situation.

September 20, 2010:

1) The grievor signed an AF for the day shift, but her name did not appear on the CX-1 OL.

2) MB (CX-2), who was not on the CX-2 OL, was hired for 8 overtime hours in a post recorded as a CX-1 position.

3) The employer stated that MB was in an extra-duty post.

C. Allegations under clause 21.10(a) of the collective agreement

40        The employer was obligated to“... allocate overtime work on an equitable basis among readily available qualified employees”. The collective agreement did not define what is meant by “equitable basis”.

41        The national direction contained the following definitions:

1. Overtime:
i (a) Full-time employee: authorized work in excess of the employee’s scheduled hours of work...
ii Voluntary Overtime: The offering of overtime where the employee retains the option to decline the offer.
iii Involuntary Overtime: The ordering of overtime by a manager due to operational requirements, where the employee has no option to decline.

2. Equitable offering of overtime: means that over the fiscal year, management has made every reasonable effort to offer approximately the same amount of OT hours to one employee as it has to other readily available qualified employees in the same work area. However, some employees may end the recording period with fewer overtime hours worked.

[Emphasis in the original]

42        The national direction stated that “[t]he equitable offering of overtime shall be calculated over a twelve-month period (April 1 to March 31)”. It further stated that managers were to monitor the equitable offering of overtime on an ongoing basis, using quarterly reports.

D. Grievor’s position

43        The grievor contended that on two days in 2009-2010 and on six days in 2010-2011, the employer allocated overtime in an inequitable manner that was contrary to the national direction and the collective agreement, and that she lost overtime opportunities as a result.

44        For example, the employer

1) hired CX-1s who were lower on the CX-1 OL than the grievor;

2) hired CX-1s at 2.0 who had more overtime hours worked than the grievor had when she was on the CX-1 OL at 1.5;

3) hired CX-1s who were not on the CX-1 OL and who had not signed AFs on days on which the grievor had signed an AF and was on the CX-1 OL;

4) hired CX-2s for CX-1 positions when she was on the CX-1 OL; and

5) once cancelled a transaction to hire the grievor for overtime at 1.5 and then immediately hired another CX-1 at 2.0 for the same period.

45        The grievor also argued that the evidence showed reliability problems with the SDS data, as follows:

1) when recording information about extra-duty posts when one CX-2 and one CX-1 position had been created, CMs sometimes entered both as CX-1;

2) the SDS showed overtime hours as “ordered to work” when they had been “voluntary”, and vice versa;

3) twice the grievor had signed AFs, but her name was not on the CX-1 OL; and

4) overtime was sometimes an extension of an employee’s shift; however, CMs recorded such overtime as training or as                 extra-duty posts.

46        The grievor contended that inequitability was established on the basis of the evidence for the eight days over two fiscal years. She further stated that the employer’s overtime reports did not show equitability because the person at the top of the list for each fiscal year had hundreds more overtime hours than the person at the bottom.

E. Employer’s position

47        The employer stated that the national direction established that equitability in allocating overtime hours could be measured only over an entire fiscal year. Evidence of problems on a limited number of days was not sufficient to show that the employer did not allocate overtime equitably. Therefore, the grievor did not meet her burden of proving a violation of the collective agreement. It further noted that both the collective agreement and the national direction required that it “make every reasonable effort”, meaning that it was not held to a standard of perfection.

48        In the alternative, the employer argued that the overtime records for fiscal years 2009-2010 and 2010-2011 showed that over those years, the grievor had overtime opportunities and was given more overtime hours than her similarly situated             co- workers.

49        Although the employer contended that the evaluation of equitability was conducted on a fiscal-year basis, it provided explanations for several of the overtime allocation decisions made on the eight days in question.

F. Written submissions

50        In 2011, the Federal Court of Canada (FC) held that when assessing whether an allocation of overtime was equitable, the former Board had to respect the following principles (Canada (Attorney General) v. Bucholtz, 2011 FC 1259 at para. 52):

1) Equitability cannot be determined on a day-to-day basis but instead must be measured over a reasonable period.

2) Equitability is assessed by comparing the hours allocated to a grievor to hours allocated to similarly situated employees.

3) After comparing the grievor’s overtime hours with similarly situated employees, “... the adjudicator must determine if there are any factors to explain a discrepancy between their hours such as differing availability, leave, etc....”.

51        In Mcmanaman v. Canada (Attorney General), 2015 FCA 136, the Federal Court of Appeal (FCA) endorsed the Bucholtz test for assessing the equitability of overtime allocation. It further found that neither the former Board nor the FC had defined the phrase “similarly situated employees” or had determined the relevant factors for comparison. As a result, the FCA ordered the matter sent back to the Board to be decided in accordance with its reasons.

52        Since the FCA’s decision was released after the conclusion of the hearing in this case, the Board offered the parties the opportunity to provide written submissions on the impact, if any, of the FCA’s decision on the positions they had presented to the Board.

53        In its submission, the bargaining agent repeated its position that the employer acted inequitably when it allocated overtime on eight days in 2010. It then submitted that to respect the FCA’s decision, the Board should determine that all employees with the same rank and qualifications that had signed up for the same shifts as the grievor were “similarly situated employees”.

54        The employer emphasized that the FCA had endorsed the Bucholtz test. It proposed that on the basis of the FCA’s decision, the bargaining agent had the burden of identifying similarly situated employees and introducing evidence to support its position. The employer submitted that in the grievor’s case, that had not been done, and therefore, the grievance should be denied on that basis.

55        In response, the bargaining agent argued that hours should have been compared each time overtime was allocated. Therefore, similarly situated employees would have been those who had also advised that they were available and who had worked similar total overtime hours as the grievor had from the beginning of the recording period to the date and time on which the decision was made to hire for overtime.

56        It further stated that the evidence showed that the employer made mistakes when entering data in the SDS, which made the OLs irrelevant.

57        In its reply, the employer submitted that the comparison with similarly situated employees is a fact-specific analysis that should be done over a fiscal year and that should include the following factors: “... the ranking, the necessary qualifications, the individual availability, leave, exceptional circumstances, regular shift schedule, etc.”

IV. Analysis

58        The burden fell to the grievor to establish on a balance of probabilities that the employer violated the collective agreement by allocating overtime inequitably. The FC described the task as difficult because the grievor “... must compile the statistics on overtime, and show that there is a discrepancy that cannot be explained by differing availability or some other confounding factor” (see Bucholtz, at para. 57). I note that both parties agreed that the analysis of equitable overtime allocation was governed by the Bucholtz factors. Therefore, to prove inequitability, the grievor had to establish on a balance of probabilities that a comparison of similarly situated employees over a reasonable period revealed discrepancies that could have resulted only from a lack of equity in the employer’s allocation of overtime.

59        The first Bucholtz factor establishes that equitability is measured over a reasonable period. The national direction identifies this reasonable period as being over the fiscal year. In Union of Canadian Correctional Officers - Syndicat des agents correctionnels - CSN v. Treasury Board, 2010 PSLRB 85, the former Board decided that the national direction in itself did not violate the collective agreement. In Baldasaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54 at para. 41, the former Board held that a fiscal year was an acceptable period, as follows: “... nothing prevents the employer from assessing equitability on an annual basis.” The grievor in the present case presented no evidence or other basis upon which to dispute that assertion.

60        The grievor presented some decisions that determined that equitability was measured daily. However, those cases are no longer relevant as they predate the introduction of the national direction. As the former Board stated in Baldasaro, at paras. 51 and 53:

51 That does not mean that an adjudicator would necessarily be required to allow a grievance if the employee proved that he or she was not called for a specific overtime shift, despite having the lowest number of overtime hours offered. The adjudicator would have to first assess whether that omission resulted in an inequitable allocation of overtime at the end of the fiscal year. That means that the employer could correct the omission later during the year and still allocate overtime equitably. As well, it could be that the employer would have a valid reason to offer the overtime to another employee on the list, but I shall not speculate on what those valid reasons could be.

...

53 In Mungham, and in many other decisions that applied the same logic, the adjudicator concluded that the employer violated the collective agreement because it did not respect its own local policies or procedures on the allocation of overtime. According to those procedures, equitability was assessed daily. According to the national policy, it is assessed annually, but it is allocated for individual shifts on the basis of the number of hours of overtime offered to officers during the year. The main difference between both systems is that, under the national policy, the employer can make corrections during the year and can readjust offering overtime if its national policy and its application results in an inequitable allocation of overtime.

61        The second Bucholtz factor requires the grievor to compare the overtime hours allocated to her in 2009-2010 and in 2010-2011 to overtime hours allocated to similarly situated employees. This second factor must be read in conjunction with the first, which is that the comparison of hours covers an entire fiscal year. As a result, “similarly situated employees” must be defined as employees who were similarly situated to the grievor over the course of the fiscal year in question. To apply the definition proposed by the bargaining agent, i.e., the determination of who was similarly situated to the grievor should be done daily, would ignore the fact that the only period that matters when assessing equitability is the fiscal year. A conclusion about equitability cannot be made solely by examining a limited number of single days.

62        The grievor presented evidence that in my view showed that on eight days in 2010, the employer made overtime decisions that did not always respect the national direction. However, she did not provide evidence that satisfies the Bucholtz factors. In particular, she did not provide a comparison of herself with employees similarly situated over the relevant fiscal years. She also did not identify discrepancies in those fiscal years and prove that they were caused by inequitability in allocating overtime. Therefore, I find that the grievor did not meet her burden of proving that the employer breached clause 21.10(a) of the collective agreement.

A. Allegations under clause 21.10(b) of the collective agreement

63        The collective agreement stated that the employer had to make every reasonable effort to allocate overtime work to employees at the same group and level as the position to be filled. That requirement was separate and distinct from the obligation to allocate overtime equitably.

64        In McManaman v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 75, the adjudicator discussed as follows the collective agreement requirement to respect rank when allocating overtime:

[26] Considering the wording of the collective agreement, I find that the employer can assign a CX-02 to fill a CX-01 position on overtime in one of two circumstances: first, it has already made every reasonable effort to fill the position by calling on CX-01’s [sic] who have indicated their availability to work overtime but finds that they are in fact not readily available, or, second, by proving that all CX-01’s [sic] who have indicated their availability were not “qualified” to occupy the position during the particular shift due to specific factors in the nature of the work that they will be required to perform....

65        The national direction described situations in which allocating overtime to employees at groups and levels different from the position to be filled may be justified, for example in emergency or crisis situations. In addition, if no CX-1 volunteered, CMs were advised to hire a CX-2 who volunteered before ordering a CX-1 to work overtime hours in a CX-1 position.

66        The grievor alleged that that the employer violated clause 21.10(b) on the following six occasions:

1. January 14, 2010: The grievor stated that DB, who was hired for overtime hours in a CX-1 position when the grievor was readily available and qualified, was a CX-2. However, the evidence does not substantiate that DB was a CX-2 as the same employee was on the CX-1 OL for a later date (March 23, 2010).

2. April 6, 2010: CB (a CX-2) worked a regular shift in a CX-2 position and then was hired for three overtime hours (from 16:00 to 19:00) in a CX-1 position, when the grievor was readily available and qualified. Mr. Gunter testified that this was done to keep CB in the same unit for the overtime hours as for the just-completed regular shift. He said that it was balanced by the fact that MC (a CX-1) was hired for three overtime hours in a CX-2 position in the same period. I find this was a reasonable approach given the short length of the overtime and the desire to keep the CX-2 in the same unit.

3. March 23, May 12, August 18, and September 20, 2010: The grievor alleged that on each of these four days, CX-2s were hired for overtime hours in CX-1 positions when she was readily available and qualified. The SDS evidence appeared to confirm this allegation, as follows:

- on March 23, 2010, VJ (a CX-2) was hired for three overtime hours in a CX-1 position;

- on May 12, 2010, KM (a CX-2) was hired for seven overtime hours in a CX-1 position;

- on August 18, 2010, JA, TG, and KE (CX-2s) were hired for overtime hours in CX-1 positions; and,

- on September 20, 2010, MB (a CX-2) was hired for eight overtime hours in a CX-1 position.

67        According to the employer, on all four days, CX-2s were hired for overtime hours by being placed in extra-duty posts. Mr. Gunter testified that extra-duty posts were unranked and that they could be filled by either a CX-1 or a CX-2. However, when the CMs entered the extra-duty posts into the SDS, they would regularly enter them all as CX-1 positions, even those filled by CX-2s. According to the employer, the instances raised by the grievor were not situations of it filling CX-1 positions with CX-2s. Instead, they were occasions on which the CM who created the extra-duty posts entered inaccurate data in the SDS.

68        The grievor argued that extra-duty posts were not unranked because the rank was determined by the function the extra-duty post was created to fill. However, the grievor presented no evidence to support this assertion, leaving the employer’s explanation uncontradicted.

69        Given the employer’s explanation, I find that it did not breach clause 21.10(b) in these instances. However, I find it problematic that incorrect information was entered into the SDS. Grievors have the burden of proving that the employer breached a provision of the collective agreement. To do so, they must often rely on employer records to establish their positions. Therefore, it is extremely important for such employer records to be accurate and reliable.

70        For all of the above reasons, the Board makes the following order:

V. Order

71        Files 566-02-6516 and 568-02-278 are closed.

72        I deny the grievance in file 566-02-6258 and order the file closed.

73        The grievances in files 566-02-6513 to 6515, 6518, 6519, and 6551 are dismissed.

June 2, 2016.

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Appendix

A. Chronologies of the grievances

74        The grievor referred a number of grievances to adjudication and withdrew some of them. At the start of the hearing, I confirmed with the parties that the following seven grievances and one application were the subject of the adjudication:

1. File 566-02-6258

75        Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on May 11, 2011.

a) First level:

- filed on May 18, 2011;

- denied on May 19, 2011. The equitable offering of overtime could only be determined based on a 12-month period, and the relevant 12-month period had not yet ended.

b) Second level:

- transmitted on May 19, 2011;

- denied on August 9, 2011, for the same reasons.

c) Third level:

- transmitted to the final level on October 3, 2011;

- denied on December 16, 2011, after the grievance was referred to adjudication. The employer found that the grievance was transmitted to the third level late and was premature in any event, and there was no evidence that the grievor had not been allocated overtime on an equitable basis.

The grievance was referred to adjudication on November 4, 2011.

2. Application 568-02-278

A request for an extension of time in which to transmit the grievance in file 566-02-6258 to the final level (under s. 61(b) of the Public Service Labour Relations Regulations).

3. File 566-02-6513

Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on January 1 and 14, 2010.

a) First level:

- filed on October 5, 2011;

- denied on October 12, 2011, because the grievance was filed late at the first level, and the equitable offering of overtime could only be determined based on a 12-month period.

b) Second level:

- transmitted on October 28, 2011;

- denied on November 30, 2011, for the same reasons given at the first level. The employer found further that the grievor was well above the average for overtime allocated in the relevant period.

c) Third level:

- transmitted to the final level on December 5, 2011;

- denied on February 29, 2012, for the same reasons, after the grievance was referred to adjudication.

The grievance was referred to adjudication on January 25, 2012.

4. File 566-02-6514

Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on April 6, 9, and 18, 2010.

a) First level:

- filed on October 5, 2011;

- denied because the grievance was filed late at the first level, and the equitable offering of overtime could only be determined based on a 12-month period.

b) Second level:

- transmitted on October 28, 2011;

- denied on November 30, 2011. The employer stated that overtime was allocated appropriately on the three days in question. Timeliness was not addressed.

c) Third level:

- transmitted to the final level on December 5, 2011;

- denied on March 12, 2012, after the grievance was referred to adjudication. The employer found that the grievance was transmitted late to the first level, that the equitable offering of overtime could only be determined based on a 12-month period, and that there was no evidence that the grievor had not been allocated overtime on an equitable basis.

The grievance was referred to adjudication on January 25, 2012.

5. File 566-02-6515

Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on May 10, 11, 12, 18, and 24, 2010.

a) First level:

- filed on October 5, 2011;

- denied on October 12, 2011, because the grievance was filed late, and the equitable offering of overtime could only be determined based on a                 12-month period.

b) Second level:

- transmitted on October 28, 2011;

- denied on November 29, 2011, for the same reasons given at the first level. The employer noted further that the grievor was well above the average for overtime allocated for the relevant period.

c) Third level:

- transmitted on December 5, 2011;

- denied on March 5, 2012, after the grievance was referred to adjudication. The employer found that the grievance was filed late at the first level, that the equitable offering of overtime could only be determined based on a 12-month period, and that there was no evidence that the grievor had not been allocated overtime on an equitable basis.

The grievance was referred to adjudication on January 25, 2012.

6. File 566-02-6518

Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on August 18 and 30, 2010.

a) First level:

- filed on October 5, 2011;

- denied on October 12, 2011, because the grievance was filed late, and the equitable offering of overtime could only be determined based on a                 12-month period.

b) Second level:

- transmitted on October 28, 2011;

- denied on November 29, 2011, for the same reasons given at the first level. The employer noted further that the grievor was well above the average for overtime allocated for the relevant period.

c) Third level:

- transmitted on December 5, 2011;

- denied on March 5, 2012, after the grievance was referred to adjudication. The employer found that grievance was filed late at the first level, that the equitable offering of overtime could only be determined based on a 12-month period, and that there was no evidence that the grievor had not been allocated overtime on an equitable basis.

The grievance was referred to adjudication on January 25, 2012.

7. File 566-02-6519

Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on September 8, 9, 15, and 20, 2010.

a) First level:

- filed on October 5, 2011;

- denied on October 12, 2011, because the grievance was filed late, and the equitable offering of overtime could only be determined based on a                 12-month period.

b) Second level:

- transmitted on October 28, 2011;

- denied on November 29, 2011, for the same reasons given at the first level. The employer noted further that the grievor was well above the average for overtime allocated for the relevant period.

c) Third level:

- transmitted on December 5, 2011;

denied on March 5, 2012, after the grievance was referred to adjudication. The employer found that grievance was filed late at the first level, that the equitable offering of overtime could only be determined based on a 12-month period, and that there was no evidence that the grievor had not been allocated overtime on an equitable basis.

The grievance was referred to adjudication on January 25, 2012.

8. File 566-02-6551

Allegation: The employer violated the collective agreement by bypassing the grievor for overtime on March 21 and 23, 2010.

a) First level:

- filed on October 5, 2011;

- denied on October 12, 2011, because the grievance was filed late, and the equitable offering of overtime could only be determined based on a                 12-month period.

b) Second level:

- transmitted on October 28, 2011;

- denied on November 29, 2011, for the same reasons given at the first level. The employer noted further that the grievor was well above the average for overtime allocated for the relevant period.

c) Third level:

- transmitted to the final level on December 12, 2011;

- denied on February 29, 2012, after the grievance was referred to adjudication. The employer found that the grievance was transmitted late to the first level, that the equitable offering of overtime could only be determined based on a 12-month period, and that there was no evidence that grievor had not been allocated overtime on an equitable basis.

The grievance was referred to adjudication on January 31, 2012.