FPSLREB Decisions

Introduction

1 The Arbitration Board issued its Awards in this matter on June 3, 2014: one Award for the AS (585-09-54), AD (585-09-55), PG (585-09-56) and CS (585-09-64) bargaining units and one Award for the OP (585-09-60) bargaining unit. The Arbitration Board retained jurisdiction to deal with implementation issues for a period of two weeks. The bargaining agent (RCEA) raised an issue with regards to salary protection on June 17, 2014.

2 The Arbitration Board determined that it would address the RCEA request through written submissions. The RCEA submissions were received on June 17, 2014. The employer submissions were received on June 25, 2014. The bargaining agent provided reply submissions on June 30, 2014.

Background

3 In its arbitration brief, the bargaining agent referenced an ongoing classification review for the AS and AD Groups. It proposed a Memorandum of Understanding for Salary Protection for all bargaining units in the event of a “new classification standard or system”.

4 The employer, in its arbitration brief, responded as follows to the proposal:

The NRC Human Resources Manual contains a policy on Classification, and specifically, on “salary protection” matters. Section 5.3.8.7.2 deals with rates of pay on downward classification and specifically provides that when an employee’s position is downwardly reclassified, the employee shall remain at the former classification for all pay purposes unless the employee refuses an appointment to a position at the former classification level in the same geographic region. As Section 5.3.8.7.2 of the NRC Human Resources Manual adequately addresses this issue, there is no need for duplication in the collective agreement. …  

5 The NRC Human Resources Manual has two relevant chapters relating to salary protection and reclassification. Chapter 9 (Classification) states (9.1.13.6) that incumbents of positions reclassified downwards are eligible for salary protection in accordance with the salary protection provisions in the Manual (now section 5.3.8.7).

6 The salary protection provisions in the Manual state:

5.3.8.7.2 When NRC effects a downward classification to an employee’s position, the employee shall remain at the former classification for all pay purposes only unless the employee refuses appointment to a position at the former classification level in the same geographic region.

5.3.8.7.3 If an employee refuses such appointment, NRC shall appoint the employee at the lower classification level and the appointment shall constitute a transfer to determine the new rate of pay.

7 In 2012, the employer issued a document entitled “NRC Classification Renewal Project – Project Charter”. In that document the employer stated that it would “give employees assurance that they will receive salary protection if their positions are negatively affected by the conversion to a new job evaluation system”.

8 The Arbitration Board reached the following conclusion with respect to Salary Protection for all bargaining units: 

87. The bargaining agent proposed the inclusion of a Memorandum of Understanding on Salary Protection in the collective agreement. The bargaining agent noted that there was a current classification review for the AS and AD Groups underway, making this a pressing issue. The Employer submitted that there was an existing Salary Protection Policy and that there was no demonstrated need to include an MOU in the collective agreement. 

88. The Arbitration Board notes that there are no demonstrated problems with the existing salary protection policy of the employer. However, the Arbitration Board notes that the current policy is subject to unilateral change and does not provide for recourse to adjudication if it is breached. Accordingly, the Arbitration Board has determined that the employer's salary protection policy, as of the date of this Award, shall be included in the collective agreement as an Appendix.

[Identical language is contained in the Award for the OP bargaining unit at paragraphs 71 and 72]  

9 After its Award was issued, the bargaining agent advised the Arbitration Board that there was no stand-alone Salary Protection Policy but that issues of classification are addressed in the Human Resources Manual. The employer's position is that the Award only requires the incorporation of two paragraphs of its Human Resources Manual into the collective agreement (5.3.8.7.2 and 5.3.8.7.3) and neither of these paragraphs apply to a conversion exercise.

Bargaining Agent submissions

10 The bargaining agent noted that the evidence at the hearing was that there was an ongoing classification review of the AS and AD Groups that will lead to a conversion of those classifications into a new classification standard. In order to best implement the intentions of the Arbitration Board, the RCEA proposed language for an Appendix to the collective agreement on salary protection.

11 In the alternative, the bargaining agent proposed that the existing employer language in chapter 5.3 of the Human Resources Manual as well as the language ensuring salary protection, contained in "NRC Classification Renewal Project -- Project Charter" be incorporated into an Appendix of the collective agreement.

Employer submissions

12 The employer submitted that the requests of the bargaining agent go beyond clarification of the award and would require the Arbitration Board to come to a different decision. It submitted that the Arbitration Board was functus officio and was therefore prevented from granting either of the bargaining agent's proposals: Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848.

13 The employer submitted that in addition, retaining jurisdiction to implement an order is not equivalent to jurisdiction to change an order: Cargill Ltée v. Syndicat national des employés de Cargill Ltée, 2002 FCA 269.

14 The employer also referred the Arbitration Board to Public Service Alliance of Canada and Treasury Board, [1988] C.P.S.S.R.B. No. 27, where the Board declined to exercise its jurisdiction because any confusion or uncertainty was known or should have been known to the bargaining agent at the initial hearing.

15 The employer submitted that the Arbitration Board clearly chose to incorporate paragraphs 5.3.8.7.2 and 5.3.8.7.3. of the NRC's Human Resources Manual, without modification: 

The RCEA had the opportunity and did argue at the hearing that its Memorandum of Understanding with regard to salary protection was required. The RCEA also had the opportunity to argue to the Arbitration Board that the NRC's Human Resources Manual did not address conversion. The RCEA failed to do so at the hearing, in as such it is now precluded from raising this issue post award. Any disagreement that the RCEA had with the NRC submissions at the hearing was patently obvious and available to the RCEA at that time. The Arbitration Board should not use this opportunity to change its award; neither should the RCEA be given another opportunity to argue its case.

16 The employer submitted that the Arbitration Board clearly did not intend to award the RCEA's proposal of a Memorandum of Understanding or a modified version of the RCEA's proposed Memorandum of Understanding in its Award.

17 It stated that a decision-maker is barred from further augmenting its reasons on issues that were previously addressed where the earlier award adequately represents the manifest intention of the decision-maker: I.M.P. Group Ltd. Aerospace Division (Comox) v. Public Service Alliance of Canada, 2007 FC 517.

18 The employer submitted that, as the Arbitration Board clearly intended to incorporate the Human Resources Manual referred to the in the NRC's Arbitration Brief and Book of Documents to govern the issue, and it did not have the jurisdiction to amend the Human Resources Manual, the RCEA's request cannot be entertained under either the manifest intention exception or the statutory mandate exception expressed in Chandler.

19 The employer also submitted that the review provisions for arbitral awards under section 158 of the Public Service Labour Relations Act (PSLRA), are not applicable.

20 The NRC requested that the Arbitration Board reject both proposals of the RCEA and confirm that: 

1. the implementation of the award on salary protection simply requires the incorporation into the agreement of paragraphs 5.3.8.7.2 and 5.3.8.7.3 of the HR Manual only, 
2. it does not apply to a conversion exercise and 
3. the award does not incorporate the entire HR Manual into the collective agreement.

Reply submissions of bargaining agent

21 The bargaining agent submitted that there is nothing in the Project Charter document to suggest that salary protection means anything other than the provisions set out in the Manual. It submitted that the employer has not explained its position that only paragraphs 5.3.8.7.2 and 5.3.8.7.3 should be incorporated into the collective agreement. It also submitted that the employer has not explained how its position that these paragraphs do not apply to the conversion exercise is consistent with the Arbitral Awards.

22 The bargaining agent submitted that the Arbitration Board is not being asked to amend its award; it is being asked to clarify it.

23 The bargaining agent stated that the concept of functus officio must be applied in a flexible and less formalistic manner in respect of decisions of administrative tribunals: Chandler, at paragraphs 21 and 22.

24 The bargaining agent submitted that recent jurisprudence has emphasized the importance of interest arbitration boards to exercise continuing jurisdiction over a dispute to give effect to the “manifest intent” behind the award: Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2006 NSCA 85 and CUPE, Air Canada Component v. Air Canada, 2014 ONSC 2552.

25 The bargaining agent submitted that its proposal for clarification reflects the manifest intention of the Arbitration Board’s initial award. In addition, it submitted that the Arbitration Board should clarify its Award in order to avoid an unnecessary policy grievance.

26 The bargaining agent stated that it was not relying on section 158 of the PSLRA in making its request for clarification. It agreed that section 158 has no application to this case. It submitted that it appeared that the NRC was arguing that sections 158 and 158.1 of the PSLRA were a complete code governing the actions of an arbitration board after issuing its award. It submitted that these sections do not limit the ability of an arbitration board to retain jurisdiction to address implementation issues arising from an award.

27 The bargaining agent also argued that the employer had accepted the jurisdiction of the Arbitration Board when it agreed to the panel remaining seized to deal with the specific issue raised by the bargaining agent.

Analysis

28 We do not accept that the employer has accepted our jurisdiction merely by agreeing that we should remain seized to address submissions on salary protection. However, for the reasons set out below, we conclude that the Arbitration Board does have jurisdiction to address the issue surrounding salary protection and is not functus officio.

29 We are of the view, as set out by the Supreme Court in Chandler, that the concept of functus officio must be applied flexibly in administrative proceedings. In addition, the preamble to the PSLRA includes the recognition of the need for a “fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment”. Given the circumstances in this case, it would be neither credible nor efficient to not clarify our Award.   

30 It was clear that at the initial hearing, in both the submissions of the bargaining agent, as well as in its reference to a new classification standard or system in the title of its proposal, the issue in dispute related to salary protection as a result of any reclassification exercise or conversion. The employer implied in its submissions to the Arbitration Board that the provisions in the Manual did apply to a new classification standard or system when it stated that as the Manual, “adequately addresses this issue, there is no need for duplication in the collective agreement.” The employer did not argue at the initial hearing that the Manual provisions did not apply to a conversion exercise and there was no obligation on the bargaining agent to argue the contrary position given that it was proposing a new (and different) Memorandum of Understanding.

31 It is also clear from the submissions of the employer, as well as the Project Charter document, that the employer intends to provide salary protection upon any negative effects of the conversion to a new job evaluation (i.e., classification) system.

32 In the context of the submissions made to the Arbitration Board, as well as the context of the proposal’s reference to a new classification standard or system, it is clear that the manifest intent of the Arbitration Board was to make the existing rules on salary protection applicable to any involuntary change in an employee’s classification (including on conversion) and to include those existing rules in the collective agreement.

33   The Arbitration Board ordered the inclusion of the employer’s “salary protection policy” into an Appendix to the collective agreement. Unfortunately, the Arbitration Board did not set out the constituent elements of the employer’s policy. In order to clarify its manifest intent, the Arbitration Board provides the following clarification of its order:

Paragraphs 9.1.13.6, 5.3.8.7.2 and 5.3.8.7.3 are to be included in an Appendix to the collective agreement, entitled “Salary Protection upon Reclassification and Conversion”.

Ian R. Mackenzie
(original signed by)

For the Arbitration Board

July 10, 2014