FPSLREB Decisions

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        In July and August 2012, Crystal Doran, Steven Rumboldt, and Heather Welsh (“the grievors”) filed grievances against a decision by the Correctional Service of Canada (CSC or “the employer”) to not reimburse them for meal allowances that they claimed entitlement to under the National Joint Council (NJC) “Travel Directive” (“the NJC Directive”) and the collective agreement between the Treasury Board of Canada and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, which expired on May 31, 2010 (“the collective agreement”).

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 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 ss. 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 s. 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
ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

3        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act and the Public Service Labour Relations Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).

II. Summary of the evidence

4        At the hearing, the parties submitted an agreed statement of facts and called witnesses to testify. Paul Devine and Crystal Doran testified on behalf of the grievors. The employer called Kristel Henderson to testify. The evidence has been summarized on the basis of both the agreed statement of facts and the testimonies of the witnesses.

5        The grievors are employed by the CSC as correctional officers, classified CX-02, at Nova Institution for Women in Truro, Nova Scotia (“the institution”). They are covered by the collective agreement.

6        At the relevant times, the grievors were escorting inmates outside their headquarters area (greater than 16 km from the institution), were working their regular shifts, were not on overtime status, were working a variable schedule of 12.75 hours, were provided with a lunch (mid-shift meal) allowance at the NJC Directive rate, and were paid the applicable meal break allowance. However, they were denied a second or dinner meal allowance at the NJC Directive rate, which is the basis for their grievances.

7        Three examples of escort duties were submitted as evidence. The first was carried out by Mr. Rumboldt and started at 07:30 on August 17, 2012, and ended at 19:15 on the same day. The second was carried out by Ms. Doran and also started at 07:30 on August 17, 2012, and ended at 19:15 on the same day. The third was carried out by Ms. Welsh and started at 07:00 on June 16, 2012, and ended at 19:30 on that same day.

8        The witnesses explained that inmate escorts can occur for a number of reasons and can involve a number of factors, including the following:

• visits to family members;
• hospital admissions;
• they will often last approximately 12 hours;
• correctional officers do not always know in advance that they are being assigned escort duties and may find out only upon arriving at work;
• food cannot be purchased at the institution, which means that correctional officers must bring their own meals;
• it is not always possible to bring a meal on an escort duty, especially when it needs to be heated or cooked before being consumed;
• it is not possible to take a meal break while on escort duty, which is why correctional officers on escort duty are entitled to a meal break allowance, which was paid in these cases;
• food may be purchased at a drive-through restaurant if time permits; and
• the employer has taken the position that in the case of escorts lasting less than 15.75 hours, only one meal claim will be paid, as lunch and at the NJC Directive rate, and that if the escort lasts more than 16 hours, a second meal claim will be paid, as dinner and also at the NJC Directive rate.

9        Although the grievors’ escort duties lasted less than 16 hours in each of the three occurrences brought to my attention (11.75 hours for Mr. Rumboldt and Ms. Doran and 12.5 hours for Ms. Welsh), all three grievors made a second meal claim, at the NJC “dinner” rate, which they believe constituted reasonable expenses incurred while on escort duty.

10        The employer denied the grievors’ claims up to the final level of the internal grievance process. Ms. Henderson testified that since the collective agreement provides for only one meal or lunch break during a 12.75-hour shift, only one meal allowance can be paid to a correctional officer performing escort duties during such a shift. She added that while reasonable expenses incurred during an escort can be reimbursed under Appendix “D” (paragraph 3) of the collective agreement, only reasonable expenses as defined by the employer will be reimbursed. Ms. Henderson referred me to CSC Bulletin #2012-01, dated February 17, 2012 (“the bulletin”), which, according to her, spells out or defines what expenses will be reimbursed during escort duty. The bulletin does not provide for any second or dinner meal allowance or reimbursement while on escort duty unless the escort proceeds beyond 16 hours. Incidentally, I was not presented with evidence suggesting that a second meal had been purchased by any of the grievors while on escort duty.

11        Finally, the parties agreed that while correctional officers performing escort duty are not on travel status pursuant to the NJC Directive, any meal allowance entitlement is payable on the basis of the NJC Directive’s rates.

III. Summary of the arguments

A. For the grievors

12        The grievors submitted that their claims for the reimbursement of a second or dinner allowance during escort duty is a reasonable expense, as that term is contemplated in Appendix “D” (paragraph 3) of the collective agreement.

13        The grievors argued that their bargaining agent had agreed to the terms set out in Appendix “D”, unlike the bulletin, which was unilaterally imposed by the employer and is not part of the collective agreement.

14        The grievors referred me to the following caselaw: Joly v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 112, Clerveaux v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 7, and Lannigan v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 31. In my analysis, I did not find these authorities to be on point, as they appear to address issues that are unrelated to the present grievances.

B. For the employer

15        The employer submitted that no breach of the collective agreement occurred in these cases since the grievors were entitled to only one meal or lunch break and received one meal allowance.

16        It added that Appendix “D” of the collective agreement clearly stipulates that it retains a discretionary power over what constitutes the reasonable expenses of a correctional officer while on escort duty. It exercised that power when it issued the bulletin, which does not provide for the reimbursement of a second meal or dinner allowance for escorts of less than 16 hours.

17        The employer also argued that the bulletin was in line with all other applicable provisions of the collective agreement.

18        The employer referred me to the following caselaw: Harrison v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 3, Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, and Delios v. Attorney General of Canada, 2015 FCA 117.

IV. Reasons

19        For the most part, the evidence presented by the parties is undisputed. What divides them are their different interpretations of the collective agreement as it applies to meal allowances for correctional officers on escort duty. The NJC Directive does not apply to these grievances, other than to assist in establishing the amount payable for each meal allowance, which is not a point of contention. The only contentious issue is whether the grievors are entitled to a second or dinner meal allowance while performing escort duty for a period that exceeds 8 hours but is less than 16 hours.

20        The following collective agreement provisions must be examined to decide these grievances:

...

21.07 Except as may be required in a penitentiary emergency, the Employer shall:

(a) grant a Correctional Officer a paid thirty (30) minute period, away from his work post, to have a meal within the institution, for every complete eight (8) hour period,

and

(b) notwithstanding paragraph (a) above, a Correctional Officer may exceptionally be required to eat his or her meal at their work post when the nature of the duties makes it necessary.

(c) In the event that the Employer is unable to grant an employee a meal break, in lieu thereof the employee shall receive an additional one half (1/2) hour of compensation at time and one half (1 1/2).

...

Article 34 - Modified Hours of Work

The Employer and the Union agree that the following conditions shall apply to employees for whom modified hours of work schedules are agreed upon pursuant to the relevant provisions of this collective agreement. The agreement is modified by these provisions to the extent provided herein.

...

Breaks

Employees working twelve (12) hour shift schedules are permitted in addition to the lunch or meal break provided in paragraph 21.07, an additional fifteen (15) minute break.

...

Appendix “D”

Inmate Escorts

For the duration of the Correctional Services Group Collective Agreement, the Employer agrees to the following:

...

3. When an officer is required to escort an inmate outside of the officer’s Headquarters area the officers [sic] will be subject to the following travelling conditions:

(a) an officer will be reimbursed for reasonable expenses incurred as normally defined by the Employer ....

...

21        Since bulletins, such as the one in this case, are commonly used to standardize and clarify a national approach towards certain provisions of a collective agreement, I am of the view that the bulletin must also be examined. The relevant portion of it provides as follows:

This Bulletin is in reference to the CX Collective Agreement and Global Agreement between CSC and UCCO-SACC-CSN.

National Direction – Meal Breaks – CX Collective Agreement 21.07, 21.15, Appendix C, and Appendix D.

...

4. Meal Breaks on Escort Duty

Escort duty (inside or outside the headquarters area) is governed by Appendix D of the Collective Agreement, not the NJC Travel Directive which states that the Directive “does not apply to those persons whose travel is governed by other authorities.” Thus, officers performing escort duty are not on travel status pursuant to the NJC Travel Directive[.]

The number of meals allowed during an escort duty shift should be based on the collective agreement provisions and determined by the manager on a case-by-case basis. Generally, the number of meals allowed for an escort duty shift should correspond to the same number of meals allowed for a shift of the same length at the institution.

The mid-shift meal, regardless of whether an officer is on escort duty or not, is considered as lunch. Any subsequent meals (if applicable) continue within the sequence of, lunch, dinner and breakfast.

...

[Emphasis in the original]

22        The provisions that apply to these grievances are unambiguous. Correctional officers are entitled to a paid 30-minute meal or lunch break away from their work posts for every complete 8-hour period and to an additional 15-minute break per additional 4-hour period of work beyond those 8 hours. This is not in dispute.

23        The collective agreement also provides that correctional officers will be reimbursed for reasonable expenses incurred while performing escort duties outside of their headquarters area. However, this entitlement is subject to an important caveat, as it relates to reasonable expenses “as normally defined by the Employer”.

24        But for that caveat, I could be tempted to embark on an analysis of what constitutes a reasonable expense in the circumstances and would likely arrive at a different conclusion than the one I reached. The reality is that the collective agreement is worded in a way that empowers the employer to determine what reasonable expenses it will reimburse in such circumstances, and it has done so.

25        Through the bulletin, the employer has determined that the number of meals allowed during an escort duty shift is based on the collective agreement provisions and that the number of meal allowances for an escort duty shift corresponds to the same number of meals allowed for a shift of the same length at the institution.

26        In all three grievances, the employer took the position that since the grievors had been paid a meal or lunch allowance at the mid-point of their shifts, and since the escort duties in question were of less than 16 hours, the grievors were not entitled to a second meal or dinner allowance. In my view, this does not contravene any provision of the collective agreement. My interpretation of the relevant provisions of the collective agreement leads to the same conclusion. I note that the meal period referred to in clause 21.07 of the collective agreement is described as a lunch break in article 34.

27        As I stated earlier in these reasons, I might have concluded differently had Appendix “D” not been worded as it is. However, it is not for me to modify the text of the collective agreement to address any potential unfair or inequitable outcome. Such issues must be left for the next rounds of bargaining.

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

V. Order

29        The grievances are dismissed.

January 3, 2018.