FPSLREB Decisions

File: 166-2-28423 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN GERRY HALABECKI Grievor and TREASURY BOARD (Canadian Grain Commission)

Employer

Before: Joseph W. Potter, Board Member For the Grievor: Alfred La Bissonnière, Public Service Alliance of Canada For the Employer: Robert B. Lindey, Counsel Heard at Thunder Bay, Ontario, May 14 and 15, 1998.

Decision Page 1 DECISION The grievor, Mr. Gerry Halabecki, is a primary products inspector (PI) level 4 working for the Canadian Grain Commission (CGC) in Thunder Bay. He grieved that management violated subclause 21.14(a) of the PI collective agreement in that it allocated overtime in an inequitable manner during the 1997 shipping season. Subclause 21.14(a) reads: 21.14 Assignment of Overtime Work Subject to the operational requirements of the service, the Employer shall make every reasonable effort:

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

. . . The grievor’s requested corrective action was that he be compensated for the loss of overtime hours. Three witnesses testified and a total of 16 exhibits were filed.

A request for the exclusion of witnesses was made and granted. By way of a letter to the Public Service Staff Relations Board, dated May 12, 1998 and copied to the bargaining agent, counsel for the employer advised that he would be arguing estoppel, in addition to other arguments.

Summary of the Evidence Mr. Jack Robertson, Regional Director for the CGC, testified he is responsible for the administration of the CGC in Thunder Bay. He explained there are some 130 CGC employees in Thunder Bay with about 75 being primary products inspectors. There are eight operating grain terminal elevators (hereinafter referred to as grain elevators) and one central-administration office. Each grain elevator is, in fact, privately owned, but staffed with federal grain inspectors.

Mr. Robertson explained that PI-04’s are inspectors-in-charge of the grain elevators and that each PI-04 is assigned to a different grain elevator every shipping season, where they remain until the next shipping season. However, management tries to have them rotate, eventually, through all eight grain elevators. Management tries to avoid having any PI-04 assigned to a high-volume grain elevator two years in a row. The PI-01’s and PI-03’s are rotated through the grain elevators throughout the

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Decision Page 2 shipping season (except for those in a work-unit concept, which will be explained later). There are no PI-02’s.

Mr. Halabecki testified that he is the inspector-in-charge at a grain elevator in Thunder Bay. In 1997, Mr. Halabecki was assigned to the United Grain Growers (UGG) “M” grain elevator for the entire shipping season. Exhibits G-2 and G-3 were introduced showing the location of the eight grain elevators along the harbour of the Port of Thunder Bay.

A shipping season runs from approximately the end of March until the end of December, but is dependent upon weather conditions. As it turned out, Mr. Halabecki testified that the 1997 shipping season was a very busy one insofar as the movement of grain both into and out of the Port was concerned. The system for overtime allocation for PI-04 employees consisted of having the PI-04 at the grain elevator that required the overtime, have first choice on working the overtime (this individual was referred to as the “in-house” PI-04). If the “in-house” PI-04 did not want to work the overtime, then an “in-house” PI-03, if qualified, would be asked if he wanted to work the overtime in the PI-04 position. If that request did not elicit a volunteer, then a PI-04 from another grain elevator would be offered overtime from a daily volunteer list.

Mr. Halabecki testified he knew at the outset of the 1997 shipping season there would not be many overtime opportunities for him at the UGG “M” grain elevator as that particular grain elevator operated sporadically. The other grain elevator for UGG, known as “A”, was their primary terminal. In order to try to work more overtime, the grievor said he regularly placed his name on the volunteer list, which he had to do each day he was available to work overtime. Mr. Halabecki also asked that he be allowed to replace a fellow PI-04 who was going on leave, and thereby increase his overtime opportunities, but this request was denied.

Mr. Halabecki testified he did not receive any overtime opportunities for the first couple of months of the 1997 shipping season, yet he knew overtime was being worked at other grain elevators. In fact, he testified he saw overtime cheques of some fellow employees in June of that year and that is what prompted him to grieve. He

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Decision Page 3 said he was told his first grievance was untimely, consequently, he grieved again in August, and that is the grievance in front of me.

The grievor testified that the main difference between 1997 and the previous years, insofar as overtime was concerned, was the concept of a “work unit”. This concept involved not having the customary rotation of PI-01’s and PI-03’s, thereby keeping staff assigned to the same grain elevators for the entire shipping season. Mr. Halabecki testified that in 1996 the “Richardson” grain elevator was designated as a work unit, and in 1997, at the time of the grievance, three grain elevators had been designated as work units (Richardson; UGG “A”; and Saskatchewan Wheat Pool (SWP) 7A).

According to Mr. Halabecki, the employer knows by 3:00 p.m. at the latest whether or not there will be an overtime requirement that day. Most overtime would not begin until after 5:30 p.m. and the grievor could reach the other grain elevators within 5 to 20 minutes from his 1997 work location. On those occasions he volunteered for overtime, he said he was readily available and, as he was one of the most senior inspectors in Thunder Bay, he was qualified to do the work as well.

In cross-examination, Mr. Halabecki agreed that it is normal for a PI-04 to be assigned to one grain elevator for the entire shipping season. In fact, in 1996 Mr. Halabecki was assigned to the UGG “A” grain elevator, and in 1995 he was at the SWP 7A grain elevator and at Richardson’s grain elevator in 1994. The grievor also agreed that the volume of work fluctuates at the grain elevators from year to year.

Mr. Halabecki agreed that employees had to call in each day to put their name on the overtime list and did not know how many times he had actually called in, in 1997. He acknowledged that he took 29 days of leave with pay for union business in 1997, and, in re-examination, he added he was on annual leave for a further 14 days.

The President of the Local, Mr. Labelle, testified stating he had many discussions with management about the equitable distribution of overtime. He raised concerns with respect to the work-unit concept with management, by way of a letter to Mr. Robertson dated August 9, 1996 (Exhibit G-7). In it he stated he felt the work-unit concept would result in an inequitable distribution of overtime.

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Decision Page 4 Mr. Robertson testified that the overtime system was developed in consultation with the bargaining agent, in the mid-1980’s. Subsequent refinements in 1986 were made (see Exhibits E-3 and E-4). A further slight modification was made in 1987 (Exhibit E-5) and, except for the work-unit concept, this was the overtime system in place at the time of the grievance.

Exhibit E-6 was identified by Mr. Robertson, it being a breakdown of the overtime distribution of the employees at the PI-04 level at all of the grain elevators for the years 1994, 1995, 1996 and 1997. This document showed that Mr. Halabecki worked a total of 337.0 overtime hours in 1997, and this was the lowest of those worked by any PI-04 amongst those at the eight grain elevators. The highest overtime was 770.5 hours worked by the PI-04 assigned to the “Cargill” grain elevator. In the other years, Mr. Robertson stated Mr. Halabecki was somewhere around the mid-point for overtime hours worked. Mr. Robertson testified that in 1997 Mr. Halabecki was frequently away on leave and union business and, in fact, had missed 46 overtime opportunities while absent.

Exhibit E-7 is a listing of all overtime hours worked by PI-01’s, PI-03’s and PI-04’s in 1997 at the grain elevators in Thunder Bay. This, the witness said, indicated that 1997 was a very busy season, and that was very unusual.

In cross-examination, Mr. Richardson agreed that PI-04’s rotate annually through the grain elevators so they are knowledgeable about those grain elevators they had recently been assigned to.

Argument for the Grievor Mr. La Bissonnière stated the issue here was the loss of overtime opportunities for 1997, and he said a shipping season was a good basis for comparison with other employees at the PI-04 level.

Since it was the employer’s responsibility to allocate overtime in an equitable manner, and since the employer did not do so, the grievor should be compensated for those shifts he missed. In this light, Mr. La Bissonnière stated that the average overtime hours worked by the PI-04’s in 1997 was 550.0 hours (calculated from

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Decision Page 5 Exhibit E-6) and as Mr. Halabecki worked 337.0 overtime hours, he was seeking payment for the difference, or about 220.0 hours.

Insofar as estoppel is concerned, Mr. La Bissonnière stated this argument could not stand as the bargaining agent had not accepted the work-unit concept and was on record as stating as much (Exhibit G-7). In addition, Mr. La Bissonnière emphasized the grievance was not challenging the overtime system, which the estoppel referred to, but rather its application.

The evidence of the inequity is clear if one examines Exhibits E-6 and E-7. The employer must respect the collective agreement and it has not done so.

There was no dispute that the PI-04’s were all on rotation annually, so they all had knowledge of what was happening at each of the grain elevators. To this extent, Mr. Halabecki was well qualified to work overtime at other grain elevators.

The grievor’s representative referred me to the following cases: Conrad (Board file 166-2-13056); Aiken (Board file 166-2-14761); Del Monte (Board file 166-2-15071); Sturt-Smith (Board file 166-2-15137); Foisy (Board file 166-2-17174); Leighton (Board file 166-2-17211); Chappell (Board file 166-2-17464); Farcey (Board file 166-2-21050); Buskop (Board file 166-2-23520); and Boss (Board file 166-2-15419).

Argument for the Employer Mr. Lindey commenced by saying, in this case, the grievor carries the burden of persuasion and it has not been met. By saying simply there is a difference in overtime hours worked does not establish that overtime has been distributed inequitably and, therefore, it does not establish a violation of the collective agreement. Mr. Lindey noted that the case law cited by Mr. La Bissonnière does say that if the system for distributing overtime is inequitable, then there is a violation of the collective agreement. However, here the grievor’s representative has stressed that the grievance does not object to the system. In fact, there is no evidence to say that the system was not impartial. I was referred to Côté (Board file 166-2-13060).

Mr. Lindey stated that the grievor’ s complaint was that the “work-unit” concept implemented a system which disadvantaged him. The evidence showed that the system used for all employees at the same level as the grievor (all PI-04’s), had Public Service Staff Relations Board

Decision Page 6 remained constant for a number of years. In reality, it was a “work-unit” system as the employees at the PI-04 level remained assigned to the same grain terminal for the full shipping season. This tied in with the argument of estoppel, which, Mr. Lindey stated, was applicable here because the same practice for overtime distribution has been in place since 1987. Additionally, the system was put in place following consultation with the bargaining agent. All employees were subject to the same system and Mr. Lindey stated the system was fair. I was referred to Dore (Board file 166-2-15052).

Mr. Lindey stated that Mr. Halabecki is not affected by the work-unit concept at all, but rather his overtime hours are the result of his rotation. Some years would see a high amount of overtime due to the particular assignments, other years would be low. A review of the grievor’s past assignments over the previous four years (see Exhibit E-6) indicates he had been assigned to two of the three large grain elevators.

There is a system of voluntary overtime and no record is kept of when the employee turned down overtime, or the number of times an employee did not call in to place his/her name on the list. As a result, the figures in Exhibits E-6 and E-7 do not lead to the conclusion of inequitable distribution of overtime.

In reviewing the period of time that should be looked at to ensure an equitable distribution of overtime, Mr. Lindey suggested in this case a period of greater than one year would be appropriate due to the rotation in place. He suggested a four-year review and I was referred to Archer et al (Board files 166-2-13812 to 13817).

Mr. Lindey suggested that any remedy, if appropriate, was limited to a retroactive period of 25 days prior to the filing of the grievance as per the “Grievance Procedure” article of the Master Agreement. In this regard, counsel referred to Coallier (Board file 166-8-13465).

In the alternative, Mr. Lindey stated a remedy in kind was appropriate as opposed to the awarding of compensation. I was referred to Hayward (Board file 166-2-17188); Therrien (Board file 166-2-15121); Narbonne (Board file 166-2-12473); and Brierley (Board file 166-2-15151).

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Decision Page 7 Decision The grievor has alleged a violation of subclause 21.14(a) of the Primary Products Inspection group collective agreement. Mr. La Bissonnière stated it was the employer’s responsibility to respect the provisions of the collective agreement, and that is the real issue here. I agree. Mr. Lindey stated the grievor had the burden to prove that the employer has, in fact, not lived up to this responsibility to adhere to the collective agreement. This, too, is correct. I will begin the decision with an analysis of these two points.

The evidence indicated the system in place with the CGC for allocating overtime to employees at the PI-04 level at the various grain elevators in Thunder Bay has remained constant since approximately 1987. It was a system such that overtime is given to PI-04 employees from another terminal only when it is turned down by the “in-house” PI-04 employee as well as qualified “in-house” PI-03 employees. Mr. La Bissonnière stressed that the grievance is not objecting to the system, but rather to its application.

The only overtime that could have been distributed to Mr. Halabecki in 1997 (other than the overtime generated at the grain elevator where he worked) was overtime at another grain elevator that was turned down by the “in-house” PI-04 or an “in-house” PI-03 qualified to do the work. It is only at that point that management can turn to the volunteer list for that day and offer the overtime to another PI-04 employee. Given the fact that is the system in place, and given the fact Mr. La Bissonnière emphasized the grievance was not challenging the system, I find this is the only type of overtime the grievor could be complaining about. This finding is buttressed by the fact Mr. La Bissonnière argued the grievor was qualified to work at any other grain elevator, so it is other-grain-elevator overtime that is at issue. Mr. Halabecki would get that overtime opportunity only when an “in-house” employee turns down the overtime. No information was provided with respect to “in-house” or “non in-house” overtime opportunity. On those occasions when Mr. Halabecki put his name on the volunteer list, I do not know if, in fact, any overtime was offered to an employee outside the grain elevator where the overtime was generated. There were a number of occasions in 1997 when Mr. Halabecki did not put his name on the

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Decision Page 8 volunteer overtime list, and no one disputed his right to do so. However, I do not know if there were overtime opportunities for him during these occasions either.

There was evidence to show the annual amount of overtime worked by all PI-04 employees over the past four years (Exhibit E-6) as well as overtime worked by all PI-01, PI-03 and PI-04 employees in 1997 (Exhibit E-7). However, in this unique situation, the fact that in any one particular year an employee at the PI-04 level has lower levels of overtime than other PI-04 employees is not, in and of itself, justification for drawing a conclusion that subclause 21.14(a) has been violated. I agree with Mr. Lindey that no absolute conclusion can be drawn from these listings as they do not contain the number of times overtime was worked following the placement of one’s name on the volunteer list. Both sides agreed some grain elevators were busier than others, and the overtime recorded in these two exhibits could simply be a product of a very busy grain elevator, with the “in-house” employee performing the overtime.

Insofar as the work-unit concept is concerned, I find it has no application to the instant grievance as the concept only affected PI-01’s and PI-03’s to the extent they did not rotate through grain elevators in a shipping season. The PI-04’s, as stated earlier, were assigned to one grain elevator each season and remained there throughout. The work-unit concept did not change this for the PI-04’s.

In short, Mr. Lindey has stated the grievor carries the burden in this case and he has not met that burden. I agree.

For the above reasons, this grievance is dismissed.

Joseph W. Potter, Board Member

OTTAWA, June 18, 1998. Public Service Staff Relations Board