FPSLREB Decisions

Introduction

[1] The Terms of Reference of this Arbitration Board were established by the Chair of the Public Service Labour Relations Board (the “PSLRB”) on October 23, 2012 (2012 PSLRB 115).

[2] The first day scheduled for the hearing of this matter was used by the parties (with the assistance of the nominees) to come to an agreement on a number of matters in dispute. The issues that were resolved form part of this Award. The hearing of the remaining matters in dispute was on December 15, 2012.

[3] The following individuals participated in the arbitration on behalf of the Research Council Employees' Association (RCEA): Christopher Rootham, Joan Van Den Bergh, Serge Croteau, Anthony Paul Ifill, Floyd Toll, Kurt Konieczny, Cathie Fraser and Erin Joyce. The following individuals participated in the arbitration on behalf of the National Research Council of Canada (NRC): Stephen Bird, Gerry Bauder, Carolyn Lauzon, Terry Lindstrom, and Sheri Enikanolalye

Bargaining History

[4] The collective agreement expired on March 31, 2011. The RCEA served notice to bargain on December 1, 2010 and provided its proposals to the NRC on July 6, 2011. The NRC provided its proposals on September 14, 2011. The parties bargained on September 14, November 22 and 24, 2011 and February 21-22, 2012.

[5] On March 29, 2012, the RCEA filed a request for establishment of an Arbitration Board. A mediation session through the services of the PSLRB took place on June 18 and 19, 2012. The RCEA reactivated its request for arbitration on July 3, 2012. A hearing was conducted on issues relating to the Terms of Reference on October 4, 2012 and the Terms of Reference were issued on October 23, 2012.

Issues resolved

[6] In its written brief, the bargaining agent withdrew its proposal on Registration and Licence Fees. Prior to the hearing, the parties signed a Memorandum of Understanding that resolved the issue of military service.

[7] The parties also agreed in their submissions that the duration of the collective agreement should be three years.

[8] As part of the agreement on the remaining outstanding issues, the RCEA withdrew the following proposals:

1. Severance pay;
2. Term employees: definition and move to indeterminate;
3. Medical notes;
4. Overtime cancellation penalty;
5. Bulletin Boards;
6. Salary protection.

[9] As part of the agreement on the remaining outstanding issues, the NRC withdrew the following proposals:

1. Proposal 2 on Part Time/Overtime; 
2. Proposal 3 on Leave for Negotiations;
3. Proposal 4 on ability to schedule vacation leave;
4. Proposal 6 on guaranteed hours.

[10] The parties also resolved the following issues, which form part of this Award:

1. Electronic collective agreements;
2. Renewal of Appendix D with modification to dates;
3. Compensatory carry-over;
4. Severance (removal of severance on resignation and retirement);
5. Sick leave for term employees;
6. Bereavement leave;
7. Day care/Adoption leave;
8. Posting electronic collective agreement on the NRC Internet; and
9. RCEA website link to be moved to NRC home page (bulletin board).

[11] The agreed-upon changes to the above-noted articles are attached as Appendix A to this Award.

The Bargaining Unit

[12] The National Research Council of Canada (NRC) is a separate agency of the federal government (under Schedule V of the Financial Administration Act). The NRC's mandate includes undertaking, assisting or promoting scientific research, publishing scientific information and operating astronomical observatories. The NRC has approximately 4,000 full-time and part-time employees.

[13] There are approximately 1,055 employees in the TO bargaining unit. Employees in the bargaining unit are engaged in:

• the conduct of, or the assistance with, investigative experiments in the natural or physical sciences or engineering involving the application of methodology, principles, skills and technologies;
• the analyzing and reporting of biological, chemical and physical phenomena either individually or as a member of a team;
• the planning, design, fabrication, assembly, modification, calibration, operation and maintenance of complex equipment, systems, processes and structures for the advancement of science or technology;
• the performance of similar technical duties.

Issues in Dispute

[14] In reaching a determination on the issues in dispute, the Arbitration Board is governed by section 148 of the Public Service Labour Relations Act:

148. In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:

(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;

(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

(d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(e) the state of the Canadian economy and the Government of Canada's fiscal circumstances.

[15] The Arbitration Board has considered all of these factors in reaching its determination on the matters at issue.

Article 35.25 (Volunteer Leave)

[16] The collective agreement contains the following provision for volunteer leave:

Subject to operational requirements as determined by the Council and with an advance notice of at least five (5) working days, the employee shall be granted, in each fiscal year, a single period of up to seven decimal five (7.5) hours of leave with pay to work as a volunteer for a charitable or community organization or activity, other than for activities related to the National Research Council Workplace Charitable Campaign.

The leave will be scheduled at times convenient both to the employee and the Council. Nevertheless, the Council shall make every reasonable effort to grant the leave at such times as the employee may request.

[17] The bargaining agent proposed changes to the administration of the volunteer leave provision of the collective agreement. In the alternative, it proposed removing volunteer leave and adding the one-day of leave to the entitlement for personal leave under the collective agreement.

[18] The bargaining agent submitted that when volunteer leave was introduced into the collective agreement there was an understanding that an employee would not have to justify or account for their activities during volunteer leave. It submitted that recently the NRC management has required employees to state what volunteer activity they are engaged in, when claiming volunteer leave.

[19] The bargaining agent raised concerns about the privacy of employees in requiring them to identify the volunteer activity they are engaged in.

[20] The employer submitted that volunteer leave should be used for the purpose of volunteering and that the employer has the right to monitor the use of leave, in accordance with the management rights article in the collective agreement. The employer noted that employees were not providing much detail, if any, of their volunteer activities.

[21] Article 35.1.1 of the Collective Agreement governs all leave requests:

In respect of any requests for leave under this clause, the employee, when required by the Council, must provide satisfactory validation of the circumstances necessitating such requests, in such manner and at such time as may be determined by the Council.

[22] A print-out of granted volunteer leave was provided to the Arbitration Board. Some of the entries include a description of the volunteer activity, with varying levels of precision. In addition, the bargaining agent provided a human resources “advisory” to employees posted by the NRC on the intranet, responding to an RCEA notice:

…

I am writing to shed some light on this matter and to clarify some misrepresentations contained in the RCEA notice. To begin, RCEA is stating unequivocally that the NRC "…now seems to be adopting a different approach to the granting of volunteer leave, one that seeks to apply the exact language of the collective agreement…". This statement is misleading in that the NRC has not changed the manner in which it manages the authorization of leave, be it Volunteer leave or otherwise.

…

It has always been our advice to management at the NRC to authorize or deny leave based on the information available to it. It may have been the practice to not ask for substantiation in cases where Volunteer Leave has been requested, but this does not suggest that where management is aware of the reasons behind the request, that it will ignore such information and simply/blindly authorize the leave. Our advice continues to be that leave should only be authorized for the purposes for which it was negotiated and in accordance with the language of the relevant collective agreements.

[23] The bargaining agent also provided Information Notices with regard to the administration of volunteer leave in collective agreements with the Treasury Board of Canada. The Treasury Board of Canada Secretariat Notice states that employees are not required to provide written proof in order to qualify for volunteer leave. In addition, “employees are not required to identify the charitable organization or the community activity when making application for Volunteer Leave”.

[24] The Arbitration Board notes that there appears to be an inconsistently applied practice within the NRC of asking for details of volunteer activity. The practice within the core public service is not to require employees to identify the nature of their volunteer activity. The Arbitration Board agrees that paid volunteer leave should be used for volunteer activity, which is the intended purpose of the article. The Arbitration Board also agrees that the norm in the core public service of not requiring proof or justification for volunteer leave is appropriate. 

[25] It is the view of the Arbitration Board that the resolution of this issue is best addressed outside of the collective agreement, in the way that it has been addressed in the core public service (through an employer policy document).

[26] The Arbitration Board declines to award the bargaining agent's proposal.  

Economic increases and salary restructuring

[27] The parties agreed to a duration of the collective agreement of three years.

[28] The bargaining agent submitted that given the government's fiscal situation and the state of the economy, economic increases should be:

a.	April 1, 2011: 1.75%
b.	April 1, 2012: 1.5%
c.	April 1, 2013: 2.0%

[29] The bargaining agent also proposed a restructuring of pay as compensation for the loss of severance on voluntary departure and the recently announced increases in employee contribution rates under the Public Service Superannuation Act.

[30] The bargaining agent submitted that the salary increase for the removal of severance offered by the employer (0.75%) was insufficient. The bargaining agent submitted that the NRC Workforce Adjustment provisions are not as good as the Workforce Adjustment provisions in the core public service. Accordingly, severance is more important to NRC employees.

[31] The bargaining agent submitted that other bargaining agents that had accepted or been awarded the changes to the severance provisions had received pay restructuring of some sort in exchange. 

[32] The bargaining agent proposed that an additional 0.7% increase to salary be awarded for each year of the collective agreement as compensation for the loss of the significant benefit of severance on resignation or retirement. 

[33] The employer proposed salary increases of 1.5% per year (with an additional 0.25% in 2011 and 0.5% in 2013, in view of the acceptance of the employer's severance pay proposal):

a.	April 1, 2011: 1.75%
b.	April 1, 2012: 1.5%
c.	April 1, 2013: 2.0%

[34] The employer submitted that there was no connection between the bargaining agent's salary position and the statutory criteria to be applied by the Arbitration Board. There was no demonstrated retention or recruitment problem; there was no information provided by the bargaining agent on issues relating to external or internal relativities; and the economic and fiscal situation facing the government was fragile.

[35] The employer submitted that severance was not at issue before the Arbitration Board and the removal of severance for voluntary departures had been “bought and paid for”. The employer also submitted that there was no connection between Workforce Adjustment provisions and voluntary severance. In addition, there were interest awards where the removal of severance on voluntary departure did not result in any restructurings: e.g., International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board, Board file no. 585-02-37, July 25, 2012. 

[36]  The Arbitration Board notes that its task is not to impose terms and conditions of employment that seem attractive or fair. Our task is to “design a collective agreement that comes as close as possible to what the parties could have expected to achieve if they had been forced to impasse”: Pembroke (City) v. Pembroke Professional Firefighters' Assn., [2000] O.L.A.A. No. 612 at para. 4. In crafting a collective agreement, due regard must be had to the items that the parties were able to agree to in free negotiations.

[37] The Arbitration Board does not agree that the removal of severance for voluntary departures was “bought and paid for” (and the actions of the employer in continuing to offer a compensatory salary increase demonstrate that this is not the case). However, the Arbitration Board has considered the improvements to the collective agreement as part of the negotiated removal of the severance provision.

[38] In Federal Government Dockyard Chargehands Association v. Treasury Board of Canada, 585-02-39, August 22, 2012, the bargaining agent argued that severance on voluntary departure should not be eliminated without adequate compensation through a pay rate increase. The employer was offering the same compensation as is being offered by the NRC. The Arbitration Board concluded:

[25] On the inter-related matters of economic increase and severance pay, the Board determines that the Employer's arguments on the economic and fiscal circumstances, as well as internal and external comparability matters in section 148 of the Act, as understood through the principles of replication and conservatism, militate in favour of the acceptance of the Employer's position …

[39] The recently announced prospective increases in pension contributions for employees have not yet been implemented and it is premature to consider any impact those increases may have on total compensation. The Arbitration Board has reached no conclusion on whether or not it is appropriate to consider pension contribution rates in applying the criteria set out in section 148 of the PSLRA. 

[40] The Arbitration Board determines that, in light of the negotiated improvements to the collective agreement, the employer's offer of 0.25% in 2011 and 0.5% in 2013 as compensation for the loss of severance on voluntary departure is appropriate and shall be awarded.

[41] The Arbitration Board determines that an economic increase of 1.5% in each year is appropriate. The rates of pay are therefore as follows:

a.	April 1, 2011: 1.75%
b.	April 1, 2012: 1.5%
c.	April 1, 2013: 2.0%

Implementation

[42] The Arbitration Board will remain seized for a period of two months from the date of this Award, should the parties encounter any difficulties in its implementation.

Ian R. Mackenzie
For the Arbitration Board

January 15, 2012

1. the employee performs his duty while on deployment for a minimum of fifteen (15) calendar days in a consecutive three hundred and sixty-five (365) day period;
2. the minimum number of days referred to in (a) is made up of periods of not less than two (2) consecutive calendar days.

1. As a single payment at the rate of pay of the employee's substantive position as of (Day following start of agreement), or
2. As a single payment at the time of the employee's termination of employment from the Council, based on the rate of pay of the employee's substantive position at the date of termination of employment from the Council, or
3. As a combination of (a) and (b), pursuant to 56.11(c).

1. Subject to 56.7 above, on the date an indeterminate employee becomes subject to the Agreement after (Day following start of agreement), he shall be entitled to severance payment equal to one (1) week's pay for each complete year of continuous employment and, in the case of a partial year of continuous employment, one (1) week's pay multiplied by the number of days continuous employment divided by three hundred and sixty-five (365), to a maximum of thirty (30) weeks, based on the employee's rate of pay of his substantive position on the day preceding the appointment.
2. Subject to 56.7 above, on the date a term employee becomes subject to this Agreement after (Day following start of agreement), he shall be entitled to severance payment payable under 56.10(b), equal to one (1) week's pay for each complete year of continuous employment, to a maximum of thirty (30) weeks, based on the employee's rate of pay of his substantive position on the day preceding the appointment.
3. An employee entitled to a severance payment under sub-paragraph (a) or (b) shall have the same choice of options outlined in 56.10, however the selection of which option must be made within three (3) months of being appointed to the bargaining unit.