FPSLREB Decisions

[1]   These grievances relate to the interpretation of the variable hours of work provisions and leave entitlements under the Correctional Group (CX) collective agreement (Exhibit G-1) at the Pittsburgh Institution in Kingston, Ontario.

[2]   Susan Rook filed a grievance on December 7, 2000, against the employer's interpretation and application of the relevant articles of the collective agreement. She, along with 16 others, filed a similarly worded grievance on December 18, 2000. At the hearing, the grievors' representative, Michel Bouchard, stated that the bargaining agent would not be pursuing the part of Ms. Rook's December 7^th grievance relating to the deduction of leave credits, as the matter had been resolved by the parties.

[3]   The final level response to the grievances was issued on January 31, 2002. The grievances were referred to adjudication on February 11, 2002. Through an oversight, the bargaining agent did not send the second page of the reference to adjudication to the Public Service Staff Relations Board (PSSRB). Mr. Bouchard provided the complete copy at the hearing.

[4]   The grievances were initially scheduled for a hearing in June 2002. A joint request for a postponement of this hearing was granted. A "Memorandum of Agreement", signed by the parties on August 13, 2002, provided that the grievances would be held in abeyance pending the conclusion of collective bargaining. After the employer rejected the bargaining agent's suggestion of expedited adjudication in February 2004, the matter was scheduled for a hearing.

Evidence

[5]   The Warden at Pittsburgh Institution and the Union Local President signed an agreement implementing a variable hours schedule at Pittsburgh Institution on October 20, 2000, with a scheduled start date of November 6, 2000 (Exhibit G-3).

[6]   Ms. Rook grieved (on December 7, 2000) as follows:

On Nov. 30, 2000 CSC informed Pittsburgh Institution local union of the following:

1. On a variable hour work schedule all correctional officers leave will be accumulated based on a 37.5 hour work week and a 7.5 hour workday.

[…]

I grieve that the above statements are in direct violation of the Terms and Conditions of Employment article 34 and article 21.

[7]   Ms. Rook and 16 others filed grievances against the same matter on December 17 or 18, 2000 (all with identical language), as follows:

I grieve the employer's interpretation and application of article 34 (variable hours of work) and any other related articles of the CX terms and conditions of employment.

[8]   As corrective action, the grievors requested:

To ensure equitable treatment, I request that accumulation of leave be credited to me in the same amount that is debited when leave is used. To be made whole.

[9]   The parties submitted a joint statement of agreed facts (Exhibit G-3), which reads as follows:

The parties agree that the following statement of facts applies to all grievances referenced to adjudication under files numbers 166-31118-31135:

1. Ms. Susan Rook (the grievor) is a correctional officer within the Correctional Service of Canada since 1993 (period varies for other grievors). Ms. Rook works at Pittsburgh Institution.
2. The grievor is a shift worker who is scheduled to work an average of thirty-seven and a half (37.5) hours per week.
3. From the start of her career as correctional officer to November 6^th, 2000, the grievor was scheduled to work eight (8) hour shifts.
4. From November 6^th, 2000, to January 6^th, 2003, the grievor was scheduled to work a variable hour shift schedule. This arrangement is subject to the provisions of article 34 of the Collective Agreement.
5. At all relevant times, the grievors were shift workers. There were no thirty-seven and a half (37 1⁄2) hour work weeks in the grievors' variable hour schedule.
6. When the grievor was scheduled to work eight (8) hour shifts, she earned sick, family related and annual leave credits on the basis of eight (8) hours per day of leave entitlement and the same leave was debited on the basis of eight (8) hours per day of leave.
7. For the period from November 6, 2000 to March 31^st, 2001, the employer credited the grievors eight (8) hours per day of leave entitlement.
8. On November 30, 2000, the employer advised the grievor that it would credit leave entitlements to reflect its interpretation of the collective agreement with respect to sick, family related and annual leave with pay credits for variable hour workers.
9. For the period April 1^st, 2001, to January 6, 2003, the employer credited the grievors seven and one half (7.5) hours per day of leave with respect to sick, family related and vacation leave with pay entitlement. During this same period, the employer debited the scheduled hours of work from the grievor's leave account balance for each day of sick, family related and vacation leave with pay taken, i.e.: twelve (12) hours were debited for a day of leave taken when the grievor was scheduled to work twelve (12) hours.

[10]   The collective agreement (Exhibit G-1) sets out the hours of work for day workers and shift workers in Article 21. The grievors are all shift workers.

ARTICLE 21
HOURS OF WORK AND OVERTIME

Hours of Work

Day Work

21.01   When hours of work are scheduled for employees on a regular basis, they shall be scheduled so that employees:

(a) on a weekly basis, work thirty-seven and one-half (37 1/2) hours and five (5) days per week, and obtain two (2) consecutive days of rest,

(b) on a daily basis, work seven and one-half (7 1/2) hours per day.

Shift Work

21.02   When, because of the operational requirements of the service, hours of work are scheduled for employees on a rotating or irregular basis:

(a) they shall be scheduled so that employees:

1. on a weekly basis, work an average of thirty-seven and one-half (37 1/2) hours,

   and

2. on a daily basis, work eight (8) hours per day.

[…]

[11]   The collective agreement provisions for variable hours appear under Article 34 and Appendix "F", set out below:

ARTICLE 34
VARIABLE HOURS OF WORK

The Employer and the Public Service Alliance of Canada agree that the following conditions shall apply to employees for whom variable hours of work schedules are approved pursuant to the relevant provisions of this collective agreement. The agreement is modified by these provisions to the extent specified herein.

It is agreed that the implementation of any such variation in hours shall not result in any additional expenditure or cost by reason only of such variation.

1. General Terms

The scheduled hours of work of any day as set forth in a work schedule, may exceed or be less than the regular workday hours specified by this agreement; starting and finishing times, meal breaks and rest periods shall be determined according to operational requirements as determined by the Employer and the daily hours of work shall be consecutive.

For shift workers, such schedules shall provide that an employee's normal work week shall average the weekly hours per week specified in this agreement over the life of the schedule. The maximum life of a schedule shall be six (6) months.

For day workers, such schedules shall provide that an employee's normal work week shall average the weekly hours per week specified in this agreement over the life of the schedule. The maximum life of a schedule shall be twenty-eight (28) days.

Whenever an employee changes his or her variable hours or no longer works variable hours, all appropriate adjustments will be made.

2. Conversion of Days to Hours

The provisions of this agreement which specify days shall be converted to hours. Where the agreement refers to a "day", it shall be converted to hours in accordance with Article 21 of this agreement.

Notwithstanding the above, in clause 30.02, Bereavement Leave with Pay, a "day" will have the same meaning as the provisions of the collective agreement.

For a work week of thirty-seven and one-half (37 1/2) hours, a day shall be converted to seven and one-half (7 1/2) hours.

3. Implementation/Termination

Effective the date on which this article applies to an employee, the accrued leave credits shall be converted from days to hours.

A change to the normal weekly hours of work for an employee will require that the accrued hourly credits be reverted to days and recalculated at the changed conversion rate.

Effective the date on which this article ceases to apply to an employee, the accrued vacation and sick leave credits shall be converted from hours to days.

4. Leave - General

When leave is granted, it will be granted on an hourly basis and the hours debited for each day of leave shall be the same as the hours the employee would normally have been scheduled to work on that day.

All leave provisions which specify days in this collective agreement shall be converted to hours as follows:

	HOURS 7 1 /2
-five-twelfths (5/12) day	3.125
-one-half (1/2) day	3.750
-five-sixths (5/6) days	6.250
-one (1) day	7.500
-one and one-quarter (1 1/4) days	9.375
-one and two-thirds (1 2/3) days	12.500
-two and one-twelfth (2 1/12) days	15.625
-two and one-half (2 1/2) days	18.750

5. Specific Application

For greater certainty, the following provisions shall be administered as provided herein:

Interpretation and Definitions

[…]

Designated Paid Holidays

(a) A designated paid holiday shall account for the normal daily hours specified by this agreement.

(b) When an employee works on a Designated Paid Holiday, the employee shall be compensated, in addition to the normal daily hours of pay specified by this agreement, time and one-half (1 1/2) up to his or her regular scheduled hours worked and double (2) time for all hours worked in excess of his or her regular scheduled hours.

Vacation Leave

Employees shall earn vacation at the rates prescribed for their years of service as set forth in Article 29 of this agreement. Leave will be granted on an hourly basis and the hours debited for each day of vacation leave shall be the same as the employee would normally have been scheduled to work on that day.

Employees scheduled to work any portion of a fiscal year under the variable hours of work provisions of this agreement shall not have fractional vacation entitlement of less or more than one-half (1/2) day increased to the nearest half day.

Sick Leave

Employees shall earn sick leave credits at the rate prescribed in Article 31 of this collective agreement. Leave will be granted on an hourly basis and the hours debited for each day of sick leave shall be the same as the employee would normally have been scheduled to work on that day.

[..]

Acting Pay

The qualifying period for acting pay as specified in clause 48.07 shall be converted to hours.

[…]

**APPENDIX "F"

VARIABLE HOURS OF WORK

1. Notwithstanding the provisions of Article 21 of the Correctional collective agreement, correctional services employees employed in correctional institutions may, with the approval of the Employer, complete their weekly hours of employment in a period other than five full days provided that over a period to be determined by the Employer, employees work an average of thirty-seven and one-half (37 1/2) hours per week. In every such period, employees shall be granted days of rest on days not scheduled as normal work days for them.

2. Notwithstanding anything to the contrary contained in the Correctional collective agreement, the implementation of any variation in hours shall not result in any additional overtime work or additional payment by reason only of such variation, nor shall it be deemed to prohibit the right of the Employer to schedule any hours of work permitted by the terms of the Correctional collective agreement.

3. Any hours-of-work arrangement in accordance with paragraph 1 of this Appendix may be at the request of either party and must be mutually agreed between the Employer and the majority of employees affected and shall apply to all employees at the correctional institution.

4. Any special arrangement established under this Appendix shall be subject to the provisions of Article 34 of this agreement.

5. Hours-of-work arrangements that have been implemented at a correctional institution in accordance with this Appendix may be discontinued at the request of either party, provided at least thirty (30) days written notice is provided, or earlier if mutually agreed.

[12]   Employees earn vacation and sick leave credits for each month in which they receive at least 10 days of pay. Sick leave credits are earned at the rate of one-and-one-quarter (1 1/4) days per month (subclause 31.01(a)). Shift workers earn an additional one-sixth (1/6) of a day of sick leave per month (subclause 31.01(b)). These additional credits are not carried over to the next fiscal year and are only available if the employee has used 15 days of sick leave during the current fiscal year. Vacation leave credits are earned at rates prescribed in clause 29.02 as follows:

[…]

(a) one and one-quarter (1 1/4) days until the month in which the anniversary of the employee's eighth (8^th) year of service occurs;

one and two-thirds (1 2/3) days commencing with the month in which the employee's eighth (8^th) anniversary of service occurs;

two and one-twelfth (2 1/12) days commencing with the month in which the employees [sic] nineteenth (19^th) anniversary of service occurs;

(d) effective April 1, 1999 two and one-twelfth (2 1/12) days commencing with the month in which the employee's eighteenth (18^th) anniversary of service occurs;

(e) two and one-half (2 1/2) days commencing with the month in which the employees [sic] thirtieth (30^th) anniversary of service occurs;

(f) effective April 1^st, 1999, two and one-half (2 1/2) days commencing with the month in which the employee's twenty-nine (29^th) anniversary of service occurs;

[…]

[13]   The collective agreement provides for leave with pay for family-related responsibilities not to exceed five days in a fiscal year (clause 30.15).

Arguments

For the Grievors

[14]   Mr. Bouchard submitted that Article 34 of the collective agreement was "somewhat ambiguous". The employer initially applied the interpretation favoured by the bargaining agent and subsequently changed that interpretation with the result that entitlements for sick leave, vacation leave and family-related leave were reduced. The employer initially credited leave on the basis of 8 hours per day and subsequently changed its interpretation to 7.5 hours per day.

[15]   Mr. Bouchard submitted that leave credits should be based on 8 hours, not 7.5 hours. Article 34 states that the implementation of variable hours of work "shall not result in any additional expenditure or cost by reason only of such variation." The implementation should result in no additional cost to the employer and, equally, should not result in additional cost to the employees. The employer's interpretation is therefore contrary to the cost principle contained in the agreement.

[16]   Mr. Bouchard noted that the collective agreement establishes the hours of work as 8 hours per day for shift workers (paragraph 21.02(a)(ii)). The variable hours section of the collective agreement provides for the conversion of hours to days: "Where the agreement refers to a "day", it shall be converted to hours in accordance with Article 21 of this agreement" (clause 34.2). Therefore, wherever "day" is used, it must mean 8 hours for shift workers.

[17]   Mr. Bouchard submitted that the employer originally interpreted the variable hours so that employees accumulated 8 hours per day of entitlement. It was only after the previous collective agreement was negotiated that the employer changed its interpretation to 7.5 hours per day of entitlement. If the employer does not change its practice but continues to interpret the collective agreement in a consistent way, it should be concluded that this interpretation was what was negotiated at the bargaining table. In Phillips v. Treasury Board (Transport Canada), PSSRB File No. 166-2-20099 (1991) (QL), the adjudicator received evidence of a similar nature and he used this evidence to support this argument. Mr. Bouchard also referred me to Re Selkirk College and British Columbia Government and Service Employees' Union (2002), 106 LAC (4th) 289.

[18]   Mr. Bouchard noted that clause 34.2 states: "for a work week of thirty-seven and one-half (37 1/2) hours, a day shall be converted to seven and one-half (7 1/2) hours". He stated that there were no 37.5-hour workweeks at Pittsburgh Institution. The last phrase in the clause is general, whereas the first sentence in the clause is specific. There is a presumption that the specific should prevail over the general: Canadian Labour Arbitration (Third Edition), by Messrs. Brown and Beatty, at para. 4:2120.

[19]   Mr. Bouchard noted that there are general provisions for leave at clause 34.4 but that more specific provisions for vacation and sick leave are contained in clause 34.5. Vacation leave is earned as prescribed in the vacation leave article of the collective agreement (clause 29.02). Similarly, sick leave credits are earned at the rate prescribed in Article 31. Mr. Bouchard submitted that this should be interpreted in light of the first sentence in clause 34.2: "The provisions of this agreement which specify days shall be converted to hours".

[20]   Mr. Bouchard also submitted that words in collective agreements should be given their normal or ordinary meaning (Canadian Labour Arbitration (supra), at para. 4:2110). Interpreting "day" as eight hours is more consistent with the scheme of the collective agreement and with the hours of work of shift workers at Pittsburgh Institution.

[21]   Mr. Bouchard argued that because Article 34 is ambiguous, the contra proferentem rule should apply: "it is only by sufficiently clear words that an exception to an obligation can be established (Re Medis Health and Pharmaceutical Services Ltd. and Teamsters, Chemical and Allied Workers, Local 424 (2000), 93 LAC (4th) 118). This is the situation here, as the clause contains a limitation of the employer's liability for leave. Mr. Bouchard submitted that if all the other arguments fail, this rule should apply. Mr. Bouchard also referred me to Re Sutton Place Hotel and United Steelworkers of America (2001), 107 LAC (4th) 370.

[22]   Mr. Bouchard referred me to the discussion in Canadian Labour Arbitration (supra), at para. 4:2153, on the interpretation of "day".

[23]   Mr. Bouchard asked that I order that the vacation, sick and family-related leave balances be corrected to reflect the rate of 8 hours per day. He submitted that implementation of this result would be relatively straightforward for those grievors who are still employees. However, it may be more complex for those grievors who are no longer employees and Mr. Bouchard requested that I retain jurisdiction for this reason.

For the Employer

[24]   Mr. Hould submitted that the question to be determined is whether the employer's interpretation and application of crediting 7.5 hours for leave when working on variable hours follows Article 34 of the collective agreement. Mr. Hould submitted that Article 34 is clear and not ambiguous. Therefore, an adjudicator should not take account of past practice of the employer. In any event, there was no evidence of past practice before me. Variable hours were implemented in November 2000 and the employer's interpretation was announced later that month.

[25]   Mr. Hould noted that Article 34 states: "The agreement is modified by these provisions to the extent specified herein". This shows a clear intent to modify the collective agreement.

[26]   Mr. Hould argued that clause 34.5 was clear that the intent was to specify hours of leave. The hours are calculated according to clause 34.4. The table of conversion sets out clearly what the conversion rate is. It is clear that by including clause 34.4, the parties intended on converting leave provisions to hours for leave entitlements. The conversion table shows that the conversion was to be based on a ratio of 7.5 hours per day. Mr. Hould submitted that while working on variable shift schedules, employees continue to earn leave at the same rate but the leave has to be converted to hours according to clause 34.4. Although there is no specific provision under clause 34.5 for family-related leave, that does not change clause 34.4, which applies to all leave provisions.

[27]   Mr. Hould submitted that the definition of day in clause 34.2 was more general than the specific provision for the leave provisions: the more specific provision should prevail.

[28]   Mr. Hould noted that in King v. Canada Customs and Revenue Agency, 2001 PSSRB 117, the adjudicator stated that a normal interpretation of the word day as a period of 24 hours was consistent with the intent and scheme of the agreement "unless otherwise specified, as in the case of earned vacation or sick leave". Mr. Hould submitted that the parties have "otherwise specified" in clause 34.4. The parties have inserted a provision for a specific number of hours and this applies to all leave provisions. Mr. Hould submitted that Article 34 was analyzed this way in White v. Treasury Board (Solicitor General Canada - Correctional Service), 2003 PSSRB 40.

[29]   Mr. Hould submitted that the only way to interpret Article 34 is by referring to clause 34.4. To adopt the bargaining agent's position of 8 hours, the parties would have referred to the matter in the same way as for designated paid holidays. Clause 34.4 was placed in the collective agreement for a reason and must be applied; otherwise, it does not have any meaning.

Reply

[30]   Mr. Bouchard submitted that clause 34.4 would still have application if I accepted the bargaining agent's interpretation, as it would still apply to day workers. In White (supra), the adjudicator did not define "day" because it did not apply. In King (supra), the interpretation is closer to what the bargaining agent is asking for in these grievances.

Reasons for Decision

[31]   The issue in these grievances is how shift workers on variable hours of work earn leave credits. (The method of deduction of leave credits when an employee takes leave is not in dispute.) The employer's interpretation is that leave credits are earned on the basis of 7.5 hours per day while the bargaining agent's view is that the leave credits are earned on the basis of 8 hours per day. The bargaining agent argues that the collective agreement provisions are ambiguous and the employer counters that the provisions are clear. I have concluded that the provisions in the collective agreement are not ambiguous and show the intent of the parties to convert leave credits on the basis of 7.5 hours per day of leave.

[32]   The variable hours of work article (Article 34) states that other provisions in the collective agreement are modified by it, to the extent specified. Therefore, an analysis of leave credits under a variable-hours-schedule must start with an examination of this article. Clause 34.2 states that the provisions in the collective agreement that specify days shall be converted to hours in accordance with the hours-of-work article (Article 21). Clause 34.2 continues: "For a work week of thirty-seven and one-half (37 1/2) hours, a day shall be converted to seven and one-half (7 1/2) hours". Clause 34.1 states that the normal workweek for shift workers shall average the weekly hours specified in Article 21, and Article 21 provides that the average weekly hours for shift workers are 37.5 hours. Appendix "F" is more specific, stating, "Employees work an average of thirty-seven and one-half (37 1/2) hours per week". Clause 34.4 provides a comprehensive conversion table and states that "all leave provisions" that specify days "shall be converted" on the basis of the table. The table includes most of the fractions of days specified in the leave articles of the agreement and clearly shows that those credits are to be converted on the basis of 7.5 hours. The only leave provision not specified in the table is the one-sixth (1/6) of a day per month of additional sick leave granted to shift workers. This omission is minor and does not change the overall framework. A plain reading of the variable hours of work provisions shows that the parties intended that leave credits be converted into hours on the basis of 7.5 hours per day.

[33]   The grievors' representative argued that the "cost neutrality" provision in the variable hours of work article was equally applicable to employees, and employees should not lose leave credits as a result of the implementation of variable hours of work. There are two references in the collective agreement to the "cost" implications of variable hours arrangements. Article 34 states that ".the implementation of any such variation in hours shall not result in any additional expenditure or cost by reason only of such variation." Appendix "F" is more specific: ".the implementation.shall not result in any additional overtime work or additional payment by reason only of such variation.". The main thrust of the "cost" provision is to restrict the costs to the employer. This does not preclude the application of the principle to employees on variable hours, however. Compared to their rate of earning leave credits prior to the variable hours of work agreement, they have suffered no losses.

[34]   The grievors' representative argued that the contra proferentem rule should apply. Since I have concluded that the collective agreement is not ambiguous, the rule does not apply here.

[35]   The grievors' representative also argued that past practice supported the interpretation of leave credited on the basis of 8 hours. Evidence of past practice is only relevant when the collective agreement is ambiguous. As I have concluded, the collective agreement is not ambiguous. In addition, the agreed statement of facts does not support an argument of a past practice on variable hours of work. Variable hours of work were first introduced at Pittsburgh Institution on November 6, 2000, and the agreed statement of facts states that the employer announced its interpretation of leave credits on November 30, 2000 (Exhibit G-3, paragraph 8). For an undisclosed reason, the employer credited leave on the basis of 8 hours per day until March 31, 2001 (Exhibit G-3, paragraph 7). In Phillips (supra), the adjudicator noted that the employer accepted (or acquiesced) to the bargaining agent's position for some six years. The employer in this case was clear on its interpretation within less than a month of implementation of variable hours at Pittsburgh Institution.

[36]   For the foregoing reasons, the grievances are denied.

Ian R. Mackenzie,
Board Member

OTTAWA, October 5, 2004.

LIST OF GRIEVORS

NAME	PSSRB FILE NO.
ROOK, Susan	166-2-31118 166-2-31119
FIELDHOUSE, Kenneth Charles	166-2-31120
DWYRE, T. Edward	166-2-31121
NOTT, Wayne	166-2-31122
Brunet, Pierre L.	166-2-31123
TESSIER, Paul	166-2-31124
MCCANN, Tim Scott	166-2-31125
TURNER, Ed Joseph	166-2-31126
RACICOT, Gilles	166-2-31127
WARNER, Randall	166-2-31128
MONDOUX, David J.	166-2-31129
JACK, Carl	166-2-31130
DOWNING, Paul	166-2-31131
CRAIG, Kelly Anne	166-2-31132
BRESEE, Derek	166-2-31133
HEBERT, Daniel	166-2-31134
MARSZALEK, Wayne	166-2-31135