FPSLREB Decisions

Decided on the basis of written submissions,
filed July 29 and August 15 and 19, 2016.

REASONS FOR DECISION

I. Policy grievance referred to adjudication

1        On June 5, 2014, the bargaining agent, the Public Service Alliance of Canada (“the PSAC”), filed a policy grievance under s. 220 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) against the Canada Border Services Agency (“the employer” or “the CBSA”), stating the following:

Details of the Grievance

The Canada Border Services Agency (CBSA) has violated the Border Services collective agreement (expiry: June 20, 2014) by improperly including past military service in the definition of “years of service” for purposes of vacation scheduling. Military service is to be used for the calculation of vacation leave credits only. We rely on Article 1 (Purpose and Scope of Agreement) and Article 34 (Vacation Leave with Pay), and any and all other related articles of the collective agreement and regulations.  

Corrective Action Requested

• That the Canada Border Services Agency not include past military service in the calculation of “years of service” for the purpose of vacation leave scheduling.
• That the Union be made whole.

[Emphasis in the original]

2        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 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 Act before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

3        On February 4, 2015, the CBSA denied the grievance, and on March 12, 2015, the PSAC referred it to the Board for adjudication.

II. Summary of the evidence

4        On March 17, 2014, the PSAC and the Treasury Board (“TB”) signed a collective agreement for all employees of the Border Services Group bargaining unit, which expired on June 20, 2014 (“the collective agreement”).

5        Clause 2.02 of the collective agreement states that except as otherwise provided, expressions used in the collective agreement, if defined in the Act, have the same meaning as given to them in the Act, and if defined in the Interpretation Act (R.S.C., 1985, c. I-21) but not in the Act, have the same meaning as given to them in the Interpretation Act.

6        Article 34 of the collective agreement governs vacation leave with pay. Clause 34.02 sets out how much vacation leave an employee will accumulate based on 75 hours of work per month. Clauses 34.02(a) through (g) set out how employees shall earn vacation leave credits, based on years of service.

7        “Service” is not defined in the collective agreement, the Act, or the Interpretation Act.

8        “Public service” is not defined in the collective agreement; however, it is defined under s. 2(1) of the Act as follows:

public service, except in Part 3, means the several positions in or under

(a) the departments named in Schedule I to the Financial Administration Act;

(b) the other portions of the federal public administration named in Schedule IV to that Act; and

(c) the separate agencies named in Schedule V to that Act … .

[Emphasis in the original]

9        Clause 34.03(a)(i) of the collective agreement states that for the purpose of clause 34.02 only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave, except where a person who on leaving the public service takes or has taken severance pay.

10        Clause 34.03(a)(ii) of the collective agreement states that for the purpose of clause 34.03(a)(i) only, effective on April 1, 2012, on a go-forward basis, any former service in the Canadian Forces for a continuous period of six months or more, either as a member of the Regular Force or of the Reserve Force while on Class B or C service, shall also be included in the calculation of vacation leave credits.

11        Clause 34.03(b) of the collective agreement states that despite clause 34.03(a), an employee who was a member of one of the following bargaining units on the date the relevant collective agreement was signed, or an employee who became a member of one of those bargaining units between that signing date and May 31, 1990, shall retain, for the purposes of service and of establishing his or her vacation entitlement pursuant to this clause, those periods of former service that had previously qualified for counting as continuous employment, until his or her employment in the public service is terminated:

Bargaining units	Dates of signing
AS, IS, and PM	May 17, 1989
CM, CR, DA, OE, and ST	May 19, 1989
WP	November 24, 1989

12        Clause 34.05 of the collective agreement is headed “Scheduling of Vacation Leave with Pay” and states in part as follows:

34.05

(a)      Employees are expected to take all their vacation leave during the vacation year in which it is earned.      

**

(b)      Vacation scheduling:

(i) Employees will submit their annual leave requests for the summer leave period on or before April 15th, and on or before September 15th for the winter leave period. The Employer will respond to such requests no later than May 1st, for the summer leave period and no later than October 1st, for the winter holiday season leave period.

Notwithstanding the preceding paragraph, with the agreement of the Alliance, the employer may alter the specified submission dates for the leave requests. If the submission dates are altered, the employer must respond to the leave request fifteen (15) days after such submission dates;

(ii) The summer and winter holidays periods are.

• for the summer leave period, between June 1 and September 30,
• for the winter holiday season leave period, from December 1 to March 31.

(iii) In cases where there are more vacation leave requests for a specific period than can be approved due to operational requirements, years of service as defined in clause 34.03 of the Agreement, shall be used as the determining factor for granting such requests. For summer leave requests, years of service shall be applied for a maximum of two (2) weeks per employee in order to ensure that as many employees as possible might take annual leave during the summer months;

…

13        Article 25 is entitled “Hours of Work”. Clause 25.17 is entitled “Shift Schedule”, and clauses 25.17(a) and (b) state as follows:

…

(a) If the Employer reopens a shift schedule due to operational requirements, or a line becomes vacant, the Employer will determine the qualifications required prior to canvassing all employees covered by this specific schedule.

Should more than one employee meeting the qualifications required select the same line on the schedule, years of service as defined in subparagraph 34.03(a)(i) will be used as the determining factor to allocate the line.

(b) In populating a newly established schedule, as developed by the Employer, the Employer will canvass all employees covered by the specific schedule for volunteers to populate the schedule.

Should more than one employee meeting the qualifications required select the same line on the schedule, years of service as defined in subparagraph 34.03(a)(i) will be used as the determining factor to allocate the line.

14        Appendix B of the collective agreement is a memorandum of understanding between the TB and the PSAC with respect to variable shift scheduling arrangements (“VSSAs”). It states in part as follows:

3.1     The Employer will establish the requirements for populating this schedule.

3.2     The Employer will canvass all employees covered by this specific VSSA for volunteers to populate the schedule.

          **

3.3     Should more than one employee meeting the qualifications required select the same line on the schedule, years of service as defined in subparagraph 34.03(a)(i) will be used as the determining factor to allocate the line.

…

[Emphasis in the original]

15        Appendix F of the collective agreement is another memorandum of understanding between the parties, this one with respect to firearm training participant selection. It states in part as follows:

…

The Employer will select, on a quarterly basis by region, training participants in the following sequence:

(a) Employees who volunteer to participate for the firearm training;

(b) Employees hired on or after August 31, 2007 starting with the employee with the lowest years of service as defined in clause 34.03,

or

(c) Employees hired prior to August 31, 2007 starting with the employee with the lowest years of service as defined in clause 34.03.

…

III. Summary of the arguments

A. For the bargaining agent

16        Clause 34.05(b)(iii) has a tie-breaking effect when it comes to using years of service when determining which vacation leave will be granted.

17        Clause 34.03(a)(i) articulates that only service within the public service is to be counted towards vacation leave.

18         Clause 34.03(a)(ii) provides for including former service in the Canadian Forces only for calculating vacation leave credits, which is to be read with clause 34.02 for the accumulation of those credits.

19        The wording of clause 34.03(a)(ii) provides a specific qualifier that states, “shall also be included in the calculation of vacation leave credits”, which limits the scope of recognizing former service for the purpose of clause 34.05(b)(iii).

20        Paragraph 29 of Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency), 2011 PSLRB 132, quotes Brown and Beatty, Canadian Labour Arbitration, Vol. 1, 4^th edition, at paragraph 4:2110, as follows:

In searching for the parties’ intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense unless to do so would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense… It has been stated, however, that where there is no ambiguity or lack of clarity in meaning, effect must be given to the words of the agreement, notwithstanding that the result may be unfair or oppressive, or that they were deliberately vague to permit continuing consensual adjustments.

21        Clear language is required in a collective agreement to deny a benefit in it to an employee. Clause 34.03(a)(ii) contains the requisite limitation in reference to calculating service solely for the purpose of vacation leave accrual (see United Nurses of Alberta, Local 121-R v. Calgary Regional Health Authority (2000), 93 L.A.C. (4^th) 427).

22        Giving effect to clause 34.03(a)(ii) causes absolutely no harm to the employer as the language does not confer an equivalent recognition of seniority or service to the affected employees with former service in the Canadian Forces.

23        In the absence of recognizing the service of the employees for whom clause 34.03(a)(i) applies, the employer is extending a right that was not intended for the purpose of vacation scheduling. Employees who have not served in the Canadian Forces should not have to compete with those who have when bidding for their vacations.

24        To give effect to the employer’s interpretation, clause 34.03(a)(ii) would have to conform to the collective agreement; it does not. The employer took a clause that confers a right to recognize service for leave accumulation and applied it to recognizing service for vacation scheduling (see Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency),2009 PSLRB 66).

25        Accepting the employer’s interpretation leads to an absurd result, which is the recognition of a right that does not exist. In the absence of clear language that establishes the recognition of service for the purpose of determining vacation scheduling as found at clause 34.03(a)(i), when read with clause 34.05(b)(iii), the words, “shall also be included in the calculation of vacation leave credits”, curtail an otherwise full recognition.

26        The language in dispute must be applied consistently within the context of the collective agreement. According to the employer’s interpretation, otherwise clear language now creates an unintended outcome.

27        The bargaining agent requests that the Board declare that the employer contravened clause 34.03 of the collective agreement and that it order the TB and the CBSA to comply with the obligations under the collective agreement.

B. For the employer

28        Canadian Association of Professional Employees v. Treasury Board (Department of Human Resources and Skills Development) 2013 PSLRB 100 stands for the proposition that the bargaining agent bears the onus of proving on a balance of probabilities that the employer has contravened the collective agreement (see paragraph 21).

29        Section 229 of the Act provides that an adjudicator’s decision, when determining the interpretation of a collective agreement clause, cannot have the effect of requiring an amendment of a collective agreement or an arbitral award (see Professional Institute of the Public Service of Canada v. National Research Council of Canada,2013 PSLRB 88; (“PIPSC v. NRC”).

30        PIPSC v. NRC,at para. 61, states that the Board, when assessing the meaning of a collective agreement, first looks at the wording of the collective agreement. Only if the disputed language is patently or latently ambiguous may extrinsic evidence be relevant.

31        Chafe v. Treasury Board (Department of Fisheries and Oceans),2010 PSLRB 112 at para. 51, provides that an adjudicator is obligated to determine the parties’ true intent when they entered into the collective agreement. To do that, he or she must use the ordinary meaning of the words that the parties used unless it would lead to some absurdity.

32        PIPSC v. NRC held at paragraph 78 that, referring to Brown and Beatty, at paragraph 4:2110, the parties are presumed to have intended to mean what the collective agreement states.

33        Palmer and Snyder, in Collective Agreement Arbitration in Canada, 4^th edition, at page 31, state that an adjudicator should give dissimilar terms different meanings.

34        Chafe,at para. 51, as well as Brown and Beatty,at paragraph 4:2150, provide that the context in which words are located is critical to their meaning. An adjudicator must consider the whole of a collective agreement, as in its entirety, it forms the context in which the words used are to be interpreted.

35        Both Chafe and Delios v. Canada (Attorney General),2015 FCA 117, hold that the fact that a particular provision may seem unfair is not a reason for an adjudicator to ignore it if it is otherwise clear.

36        Brown and Beatty,at paragraph 4:2100, provide that if the Board is faced with a choice between two linguistically permissible interpretations, it may be guided by the following:

• the purpose of the particular provision;
• the reasonableness of each possible interpretation;
• administrative feasibility; and
• whether one of the interpretations would give rise to anomalies.

37        Clause 34.05 provides for scheduling vacation leave with pay; clause 34.05(b)(ii) deals with situations of more leave requests than are operationally possible and grants leave based on years of service. “Years of service” in clause 34.05(b)(iii) refers to that term as defined in clause 34.03.

38        Clause 25.17 concerns shift schedules, and again, for an issue of conflict, it is determined based on years of service. “Years of service” in clause 25.17 is defined in clause 34.03(a)(i). At paragraph 3 of Appendix B, the memorandum of understanding about VSSAs also provides for resolving conflicts based on years of service. “Years of service” is defined there as set out in clause 34.03(a)(i).

1. The bargaining agent’s interpretation leads to an absurd result

39        The bargaining agent proposes that including former Canadian Forces service in the interpretation of clause 34.05(b)(iii) leads to an absurd result and states that that recognizes a right that does not exist. Its submissions do not clearly demonstrate why that right does not exist.

40        The bargaining agent’s emphasis of the word “only” at several points in its submissions is misleading and inconsistent. Both clause 34.03(a)(i) and clause 34.03(a)(ii) contain the word “only”. Both clauses limit applying the definition of “years of service” to the preceding clause in the collective agreement.

41        Both clause 34.03(a)(i) and clause 34.03(a)(ii) state that service (whether in the public service or in the Canadian Forces) shall be included when calculating vacation leave. In its submissions, the bargaining agent asks why the phrase, “shall also be included in the calculation of vacation leave credits”, was added to clause 34.03(a)(ii). The employer submits that based on its plain and ordinary meaning, this phrase is clearly used to mirror the construction of clause 34.03(a)(i) and to link the two clauses. The use of the word “also” in clause 34.03(a)(ii) indicates as much.

42        The word “also” is not defined in the collective agreement. As set out in Chafe,the Board can consider whether there is an ordinary and generally accepted understanding or definition of what that word means.

43        The Merriam-Webster dictionary defines “also” as “in addition” or “in a similar way”. The employer submits that in a consistent and similar way, all service within the public service counts towards vacation leave (clause 34.03(a)(i)) and that Canadian Forces service described in clause 34.03(a)(ii) also counts toward vacation leave. The bargaining agent’s submission that the words, “shall also be included in the calculation of vacation leave credits”, somehow curtail otherwise full recognition is unsubstantiated.

44        The use of the word “only” in clauses 34.03(a)(i) and (ii) does not preclude both definitions of “years of service” from being used elsewhere in the collective agreement, for example at clause 34.05(b)(iii), which deals with scheduling vacations.

45        If clause 34.03(a)(ii) is to be discounted because it states that it is “only” for vacation leave credit accumulation, then logically, so must clause 34.03(a)(i). Both state that they are “only” for the purpose of the clause that precedes them, and each states that its definition of “years of service” shall be included in the accumulation of vacation leave credits.

46        If both definitions in clauses 34.03(a)(i) and (ii) are limited to “only” vacation leave credit accumulation, as the bargaining agent argued, then an absurd result would follow as several other clauses in the collective agreement (clauses 34.05 and 25.17 and paragraph 3 of Appendix B) would fail because each draws its definition of “years of service” from either clause 34.03 or 34.03(a)(i). Without clause 34.03, those clauses would be meaningless.

2. The plain and ordinary meaning of clause 34.03 includes both clauses 34.03(a)(i) and (ii)

47        Clause 34.05(b)(iii) provides that in cases of more vacation leave requests than can be approved for a given time, then “years of service” as defined in clause 34.03 is to be used to grant the requests. It is clear that clause 34.05(b)(iii) refers to all of clause 34.03 and that it in no way restricts the definition to any part of it, which is what the bargaining agent suggests.

48        Clause 34.03 contains no main clause. It is made up of two subclauses, (a)(i) and (a)(ii). The plain and ordinary meaning of clause 34.03 would necessarily include both subclauses. To determine otherwise would lead to the absurd result of incorrectly circumscribing the definition of clause 34.03.

49        The bargaining agent’s interpretation of the reference in clause 34.05 to clause 34.03 as having only the application of clause 34.03(a)(i) simply cannot stand.

3. When read in the context of the whole collective agreement, clause 34.03 includes both clauses, 34.03(a)(i) and (ii)

50        When clause 34.05 is read within the context of the whole collective agreement, the employer’s interpretation of “years of service” in the vacation scheduling provision is evident.

51        Clauses 25.17(a) and (b), dealing with shift schedules, and paragraph 3 of Appendix B, dealing with VSSAs, specify that only “service within the public service” is to be included in the definition of “years of service”, which means that only clause 34.03(a)(i) is being referenced.

52        Given the principle of collective agreement interpretation of giving dissimilar terms different meanings, clauses 34.03(a)(i) and 34.03 cannot have the same meaning. The employer submits that clause 34.03(a)(i) is clearly a subset of clause 34.03. Therefore, at points in the collective agreement that use clause 34.03, such as in the vacation scheduling provisions, clause 34.03 must include both public service and former Canadian Forces service (when the employee meets the criteria).

53        The parties clearly chose to use the term “clause 34.03” and not “clause 34.03(a)(i)” in clause 34.05. The employer submits that the different wording in the collective agreement was used for a reason and that it must be given meaning. As such, former service in the Canadian Forces must be included in the calculation of “years of service” for clause 34.05. To interpret the clause otherwise would create an absurd result that would not respect the principles of collective agreement interpretation.

4. Fairness is not a reason to ignore otherwise clear language

54        The bargaining agent submits that including service in the Canadian Forces would be unfair as it would pit members of the same bargaining unit against one another. The employer denies that its interpretation of the collective agreement is unfair. Through the wording of the collective agreement, the parties chose to recognize service in the Canadian Forces for vacation leave and scheduling purposes.

55        The issue of fairness also depends on the perspective of the individual bargaining unit member. It is arguable that a border services officer (BSO) with 1 year of service should have priority to schedule vacation leave over another BSO with less than 1 year of service but with 20 years of service as a former member of the Canadian Forces.

56        As set out in Chafe, even if including former Canadian Forces service in the calculation of vacation leave scheduling may seem unfair, it is not a reason for the Board to ignore the provision because it is otherwise clear.

5. Harm to the employer is not relevant as the language is clear

57        The bargaining agent argued that its interpretation of clause 34.03(a)(ii) causes absolutely no harm to the employer. As the collective agreement wording is clear, the issue of harm is irrelevant. The employer referred to Public Service Alliance of Canada v. Treasury Board (Canada Border Services Agency),2011 PSLRB 132 at para. 39.

58        The employer submits that the grievance should be dismissed.

C. The bargaining agent’s reply

59        The bargaining agent submits that the onus of establishing a violation of the collective agreement has been met. The employer has conferred a right that does not exist and has not abided by the specific language set out in the collective agreement at clause 34.03(a)(ii).

60        The employer submitted that the wording, “shall also be included in the calculation of vacation leave credits”, was clearly used to mirror the construction of clause 34.03(a)(i) and to link clause 34.03(a)(ii); the bargaining agent disagrees.

61        The bargaining agent states that the use of the word “also” at clause 34.03(a)(ii) was intended, as the wording after that confirms, to recognize years of service only for vacation leave credits. The word “also” does not expand an otherwise confined recognition of vacation leave accrual. For the employer’s position to have merit, the language would need to include either additional or specific language extending the recognition of “years of service” for the purpose of vacation leave scheduling; it does not.

62        The employer submitted that clause 34.03(a)(i) is somehow discounted according to the bargaining agent’s interpretation of clause 34.03(a)(ii); it is not. If the intent of clause 34.03(a)(i) had been to include all service, including of those who served in the Canadian Forces, the parties would not have gone further to specify the confined right of vacation leave accrual found at clause 34.03(a)(ii).

63        Clause 25.17, dealing with shift scheduling, and paragraph 3 of Appendix B are not dependent on clause 34.03(a)(ii).

64        Had the parties intended to recognize all years of service to include employees who had Canadian Forces service, then that language would have been included at clause 34.03(a)(i), and no additional qualifiers would have been included at clause 34.03(a)(ii) limiting the scope of the recognition.

IV. Reasons

65        This grievance deals with the narrow issue of settling conflicts in scheduling vacation leave under clause 34.05 of the collective agreement. Clause 34.05(b)(iii) states that when there are more vacation leave requests for a specific period than can be approved due to operational requirements, years of service, as defined in clause 34.03, shall be used as the determining factor in settling the conflict.

66        The law with respect to interpreting collective agreement language is quite settled. A decision maker is to determine the parties’ intent by looking at the language in the collective agreement (see Chafe) and is to presume that the parties intended the words in it to mean what they state (see PIPSC v. NRC). In addition, also as set out in Chafe, the fact that a particular provision may seem unfair is not a reason to ignore it; it is not for the adjudicator or arbitrator to modify the text. Indeed, s. 229 of the Act specifically prohibits adjudicators from amending collective agreements.

67        Unfortunately, the collective agreement does not define the word “service” or the term “years of service”. This dispute arose because the employer included in the definition of “years of service” those years that employees governed by the collective agreement might have accumulated while not employed by the employer but as members of the Canadian Forces. The bargaining agent disagrees with that. It states that while years of service as a member of the Canadian Forces are included in the definition for the purpose of accumulating vacation leave credits under clause 34.02, they are not included in the definition under clause 34.05(b)(iii) with respect to resolving vacation scheduling conflicts.

68        Clause 34.03(a)(i) states as follows: “For the purpose of clause 34.02 only, all service within the public service, whether continuous or discontinuous, shall count toward vacation leave …”. “Public service” is not defined in the collective agreement; however, is defined in the Act. As such, that definition is applicable by virtue of clause 2.02 of the collective agreement. So, for the purposes of clause 34.03(a)(i), for the accumulation of vacation leave credits, employees (as defined by the collective agreement) shall earn those credits based on their years of service in the public service, which includes those departments and organizations set out in Schedules I and IV of the Financial Administration Act (R.S.C., 1985, c. F-11).

69        Clause 34.03(a)(ii) amends clause 34.03(a)(i) by stating as follows: “For the purpose of clause 34.03(a)(i) only, effective on April 1, 2012 on a go forward basis, any former service in the Canadian Forces for a continuous period of six months or more … shall also be included in the calculation of vacation leave credits.”

70        When read together, clauses 34.03(a)(i) and (ii) provide that, effective April 1, 2012, to calculate an employee’s vacation leave credits, all service, whether in the public service or as a member of the Canadian Forces, shall be used to make that calculation. So, as I read clauses 34.03(a)(i) and (ii), employee “A”, at any time after April 1, 2012, if he or she has been in the public service for 20 years, has 20 years to use when calculating his or her vacation leave credits in clause 34.02. Employee “B”, after April 1, 2012, if he or she has 1 year of public service and 20 years of Canadian Forces service, then, for the purpose of clause 34.02, has 21 years of service.

71        Clause 34.03(b) adds a further dimension to the calculation of leave credits under clause 34.02 by providing as follows:

Notwithstanding paragraph (a) above [clause 34.03(a)] an employee who was a member of the bargaining units listed below … shall retain, for the purposes of “service” and of establishing his or her vacation entitlement pursuant to this clause, those periods of former service which had previously qualified for counting as continuous employment, until such time as his or her employment in the public service is terminated.

72        The only thing clause 34.03 does, in clause 34.03(a)(i), (ii), or (b), is provide direction as to how “service” is to be used to calculate vacation leave credits in favour of employees under clause 34.02.

73        However, clause 34.05 deals with scheduling vacation leave as opposed to earning vacation leave credits. Clause 34.05(b)(iii) deals only with a conflict that occurs when there are too many requests for vacation during the same period such that they cannot all be approved. It states that when that happens, the determining factor shall be “years of service”, as defined in clause 34.03.

74        As stated earlier in these reasons, neither the word “service” nor the term “years of service” is defined in the collective agreement. However Chafe, at para. 51, states that I must also take into account the rest of the collective agreement, for the overall agreement forms the context in which the words used are to be incorporated and can help determine the parties’ intent. 

75        If the collective agreement is considered as a whole, in three other places, the parties provide for dispute resolution by virtue of the term “years of service”; however, the same clause is not referred to each time.

76        Article 25 deals with hours of work and has several clauses. Clause 25.17 deals with shift schedules. Clause 25.17(a) deals with situations involving reopening a shift schedule, and clause 25.17(b) deals with populating a newly established schedule. Both clauses contain the potential for a conflict to arise when populating or changing the schedule that would require, as the bargaining agent calls it, a tiebreaker to determine who would be allocated the time. At either clause 25.17(a) or (b), the tiebreaker is “years of service” as defined in clause 34.03(a)(i). It is not, as set out in clause 34.05(b)(iii), clause 34.03, but specifically only clause 34.03(a)(i).  

77        Likewise, at Appendix B, the memorandum of agreement with respect to VSSAs, is a provision similar to clauses 25.17(a) and (b). Paragraph 3 addresses selecting and populating a line schedule for VSSAs, which also has the potential for a conflict between employees as to who is to be scheduled. Paragraph 3.3 provides the conflict resolution mechanism, which again is specified as “years of service” as defined in clause 34.03(a)(i). Again, it is not, as set out in clause 34.05(b)(iii), clause 34.03, but specifically only clause 34.03(a)(i). 

78        Appendix F, the memorandum of agreement with respect to firearm training participant selection, provides that the employer shall select participants by region, on a quarterly basis, in a particular manner, with one of the clauses defining “years of service” as defined in clause 34.03 and not clause 34.03(a)(i).

79        In clause 25.17 and Appendix B, paragraph 3, the parties determined that the term “years of service”, with respect to resolving disputes under those particular clauses, shall mean what is set out in clause 34.03(a)(i), which is different from clause 34.05(b)(iii). Had the parties meant to exclude clauses 34.03(a)(ii) and (b) at clause 34.05(b)(iii), they could have done so, as they did in clause 25.17 and Appendix B, paragraph 3; they did not.

80        Using the wording at clauses 25.17(a) and (b) and at Appendix B, paragraph 3.3, at which the collective agreement talks about resolving the conflict by using “years of service” as defined in clause 34.03(a)(i), would result in only using years of service as defined by the term “public service”, which would exclude service in the Canadian Forces.

81        The bargaining agent submitted that the reference to clause 34.03 in clause 34.05, which is meant to define “years of service” for conflict resolution, means only clause 34.03(a)(i). It stated that because clause 34.03(a)(ii) states that it is only for the purpose of clause 34.03(a)(i); therefore, it is restricted to being used only to modify that earlier clause. That argument must fail for the simple reason that if I were to accept it, then how would I justify it in the face of the same provision contained in clause 34.03(a)(i), which starts with the following words: “For the purpose of clause 34.02 only …”. If I were to accept that argument, it would logically follow that accepting clause 34.03(a)(i), as referenced in clause 25.17 and Appendix B, paragraph 3, as defining “years of service” as the conflict-resolution-determining term for scheduling would also fail, based on that same argument, which is that the clause is only for calculating vacation leave credits (clause 34.02). That would be absurd.

82        The parties specifically referenced clause 34.03 in clause 34.05(b)(iii) and specifically referenced clause 34.03(a)(i) in clauses 25.17(a) and (b) and Appendix B, paragraph 3. This suggests that they meant to treat the term “years of service” in certain parts of the collective agreement in one way while treating it differently in another part (specifically, in clause 34.05).

83        I find that the interpretation the employer applied to determining years of service for the purpose of resolving a vacation scheduling conflict as set out in clause 34.05 does not contravene the collective agreement. As such, the grievance is dismissed.  

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

V. Order

85        The grievance is dismissed.

February 22, 2017.