Date:  20190723

Files:  566-02-9936 to 9949

Citation:  2019 FPSLREB 76

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

Stephan bédard, Joseph Chang, Dan Csikos, Steve Faria, Jack Jay, robert Nee, Hehong Ni, Jamie Oliver, Mark Robinson, Gerry Shamro, William Shea, Jimmy Wong, and Rimo Yoo

Grievors

and

TREASURY BOARD

(Canadian Grain Commission)

Employer

Indexed as

Bédard v. Treasury Board (Canadian Grain Commission)

In the matter of individual grievances referred to adjudication

Before:  Margaret T. A. Shannon, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievors:  Abudi Awaysheh, Public Service Alliance of Canada

For the Employer:  Marie-France Boyer, representative

Heard at Vancouver, British Columbia,

June 12 and 13, 2019.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1]  The grievors, Stephan Bédard, Joseph Chang, Dan Csikos, Steve Faria, Jack Jay, Robert Nee, Hehong Ni, Jamie Oliver, Mark Robinson, Gerry Shamro, William Shea, Jimmy Wong, and Rimo Yoo, are all primary product inspectors (“PIs 3 and 4”) who work for the employer, the Canadian Grain Commission (“CGC”), at its Port of Vancouver location. They grieved the employer’s refusal to pay them the weekend premium for hours worked on weekend shifts, contrary to clause 27.02 of the agreement Between the Treasury Board and the Public Service Alliance of Canada (“the union”) for the Technical Services Group (all employees) that expired on June 21, 2014 (“the collective agreement”).

II. Summary of the evidence

[2]  There is very little disagreement between the parties about the facts of this case. Where disagreement exists, ironically it is between the employer’s witnesses. Mr. Shea testified as a representative for all the grievors, and his evidence was accepted with the consent of the employer’s representative as applicable to all the grievors. John Mann testified on behalf of the employer. His evidence corroborated that of Mr. Shea.

[3]  According to both Mr. Shea and Mr. Mann, the grievors work day, evening, and night (graveyard) shifts, Monday to Friday, on a two-week rotation on each shift with a full rotation being completed in six weeks. Saturdays and Sundays are the grievors’ days of rest. Even though the employer does not schedule Saturdays and Sundays as part of the shift rotation for PIs, the grain terminals located around the Port of Vancouver area do operate on weekends. This requires that the employer schedule overtime shifts on the weekend that the grievors and other PIs on variable shifts may volunteer to work. In the event of insufficient volunteers, the employer schedules and directs PIs to work those shifts.

[4]  This plan was put in place in 2003, when the employer moved from a six-on, three-off shift rotation to the current five-on, two-off shift rotation with Saturday and Sunday as the days of rest.

[5]  According to Mr. Shea and as corroborated by Mr. Mann, PIs working this shift rotation at the Port of Vancouver received a shift premium for work performed on weekday evening and night shifts under clause 27.01 of the collective agreement. They also received that premium for rest-day evening and night shifts worked plus the weekend premium for all rest-day shifts (days, evenings, or nights).

[6]  This practice continued until November 12, 2013, when the employer advised the grievors that effective November 13, 2013, they would no longer receive payments under clause 27.02. This was the only change implemented; the PI shift rotation remained the same, as did their days of work and rest at the Port of Vancouver.

[7]  The hours of work for PIs on a variable-hour shift rotation are covered by Appendix M of the collective agreement. It refers to an employee’s shift, but the word “shift” is not defined anywhere in the collective agreement. The language of the workplace commonly referred to scheduled hours of operation to mean shifts. The employer and the PIs referred to the hours of operation on weekends as shifts, even though they constitute overtime hours for PIs.

[8]  When the employer changed to the current shift rotation, and Saturday and Sunday shifts became overtime shifts in 2003, a document was developed jointly by the management of the employer’s Western Region, where both the grievors and Mr. Mann work, and the union setting out how the overtime shifts were to be distributed (the “Overtime Guidelines”). The Overtime Guidelines (Exhibit 2, tab 19) are still in effect.

[9]  The Overtime Guidelines were developed around the concept that grain centres have a 24-hour working environment and that the employer would schedule overtime shifts on weekends based on the demands of clients calling at the grain elevators. Clients would advise the employer on a Thursday whether the elevator would operate on the weekend. Based on this information, the employer would schedule the shifts, assigning them to those who had volunteered to work that weekend. PIs wishing to work those shifts would advise the schedulers. In the event that not enough interest was expressed to cover a shift, PIs would be ordered to work it.

[10]  When a PI was scheduled for a weekend shift, it was for 8 hours, although he or she could have been scheduled for a 16-hour shift if so requested. A PI could be allowed to work up to 18 hours straight in special circumstances. According to Mr. Shea, the shift type does not matter; a shift is a shift for the purposes of the shift premium and the weekend premium articles of the collective agreement. Until November 13, 2013, PIs received both the shift and weekend premiums for weekend shifts.

[11]  Nathan Gerelus is the CGC’s national manager, operations and projects. He testified that in 2013, the CGC underwent significant changes to its operations with a shift in focus to the oversight of weighing outbound grain from a hands-on model. As part of this restructuring, Mr. Gerelus determined that each port had significantly different demands in terms of significantly different shift rotations and overtime. The Western Region, where the grievors were employed, had long paid the weekend premium for weekend shifts. The Port of Quebec began to once it realized that the premium was being paid in the Western Region, but Mr. Gerelus could not recall who authorized it. The Port of Thunder Bay, Ontario, also considered implementing it.

[12]  Mr. Gerelus asked his labour relations advisor, Alan Ashton, to verify with the Treasury Board whether the payment was required. Mr. Ashton replied that nowhere in the CGC were workers regularly assigned weekend shifts; therefore, the PIs were not entitled to weekend premiums. In their testimonies, both Mr. Shea and Mr. Mann completely contradicted that information. They testified that every week, the upcoming weekend’s shifts are regularly scheduled and assigned on the Thursday. Once he recognized that, Mr. Gerelus asked Mr. Ashton to revalidate Labour Relations’ interpretation. In the meantime, based on the interpretation he had received from Mr. Ashton and Labour Relations, he ended the payment of the weekend premium for shifts that PIs worked on Saturdays and Sundays. Ultimately, the Treasury Board confirmed Mr. Ashton’s initial opinion to Mr. Gerelus: no CGC employees worked a regular weekend shift.

[13]  According to Mr. Gerelus, any labour relations issues affecting the pay of employees in his region were brought to his attention if they had national implications. He was aware the weekend premiums were paid in the Western Region for the entire time he was in management. Managers had the individual authority to approve such payments in their regions. He was aware of it before it was raised in 2013 as a possible cost-cutting measure.

[14]  The CGC does not operate on a 24/7 basis, according to Mr. Gerelus, although he admitted reticently that it offers its services on a 24/7 basis. In other words, after much probing, he admitted that when its clients require it to, the CGC operates 24/7. That need varies by region and by elevator. Each location responds to its clients’ service demands. The Port of Vancouver is the only location that consistently works 3 shifts 7 days per week.

[15]  Shifts are scheduled at the Port of Vancouver from Monday to Friday, according to Mr. Gerelus. Shifts are not scheduled on weekends, even though the port offers services 24/7. Hours of operation are scheduled on weekends. Despite this, Mr. Gerelus confirmed that everyone, employees and management alike, referred to scheduled overtime at that port as a shift, that the start and end times of those shifts mirror those of the regular shifts worked from Monday to Friday by the PIs, and that they follow the same rotation pattern. Still, he stood by the advice he received from Labour Relations that hours worked on weekends are not shifts.

[16]  Mr. Gerelus acknowledged that the grievors worked on a regular rotating basis, so they were not excluded from the application of article 27 of the collective agreement. However, he maintained that since the employer does not assign overtime shifts on weekends, despite the fact that it is colloquially described in the workplace as otherwise, clauses 27.01 and 27.02 do not apply. He acknowledged that the CGC and its management refer to and accept overtime worked on weekends as shifts. Regardless, he has no discretion to question the Treasury Board; his job is to implement its directions, which he did. As a result, the employer recouped savings.

[17]  Mr. Mann described the scheduling process in his testimony. The PIs’ schedules come out on Monday mornings. Unscheduled overtime may happen from Monday to Friday due to unscheduled leave, but according to him, overtime on weekdays is rare. Weekday overtime is distributed from the volunteer list following the Overtime Guidelines that the union and management have agreed to (Exhibit 2, tab 19). The same guidelines are used for the weekend overtime assignments.

[18]  Weekend overtime was required for vessel loading and was done on a cost‑recovery basis, which was charged to the vessel. Regular weekday shifts were not charged to the vessels. There are four blackout days in the year on which the Port of Vancouver does not operate. According to Mr. Mann, his PIs were scheduled for work 361 days per year. The demand for the CGC’s services on weekends required him to order PIs to work weekends regularly since the number of volunteers was often insufficient to cover the shifts required to meet client demands.

III. Summary of the arguments

A. For the grievors

[19]  The grievors work in a 24/7 workplace that has a rotation of 3 shifts: days, evenings, and nights. On weekends, the same shifts are worked and compensated under the overtime article of the collective agreement. The employer claimed that overtime hours are not a shift, but they are a shift.

[20]  Mr. Mann testified that the demand for weekend services exceeded the number of volunteers willing to work the weekend shifts, which required the employer to order employees to work them. Mr. Mann’s evidence corroborated Mr. Shea’s evidence. Mr. Gerelus is not a credible witness. He could not recall who authorized paying the weekend premium at the Port of Quebec, when clearly he would have had to authorize it, given his position. His evidence was not objective; it was positional and intended more as argument.

[21]  The definition of “shift” and when weekend and shift premiums are payable was dealt with in Chafe et al. v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at paras. 61 to 64, Gardiner v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 128 and Denboer v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 58 at paras. 54-58. Chafe dealt with the same article 27 as is in dispute in this matter.

[22]  According to Chafe, to qualify for payments under article 27, it has been established that the grievors must work on a rotational basis, which the grievors in this matter do, and they must not be excluded from the operation of article 27 because they are covered by clauses 25.04 to 25.06 or clause 25.04 of Appendix M. They are not excluded that way because they do not work only Monday-to-Friday day shifts. None of this is disputed by the employer.

[23]  At issue is whether hours worked on a weekend constitute a shift. The adjudicator in Chafe commented at paragraph 61 that the collective agreement in that case did not define the term “shift” or phrase “working on shifts”. For that reason, he examined whether there was an ordinary generally accepted understanding or definition of what was meant by “shift work”. He concluded that shift work refers to a job schedule in which employees work hours that are other than the standard 8-to-5, Monday to Friday, or a schedule other than the standard workweek.

[24]  Gardiner and Denboer dealt with the question of whether employees who were not shift workers were entitled to shift premiums when they worked an overtime shift. Both cases concluded that a day worker does not become a shift worker merely by working overtime. Denboer examined the purpose behind including shift premiums in a collective agreement and concluded that they are intended to compensate an employee for working a time considered abnormal and inconvenient. Working a weekend shift creates a hardship for the grievors since it means working when nobody else works. They are not able to enjoy the weekends as others do, whether they volunteer or are ordered to work.

[25]  The crux of this matter is whether hours worked on a weekend, which follow the same rotational pattern as the hours that the PIs work from Monday to Friday in the Port of Vancouver, are a weekend shift. The employer could not exclude these hours under clause 25.04, so in 2013, it changed the definition of work performed on a weekend and claimed that it no longer constituted a shift but that it was simply hours worked.

[26]  The Port of Vancouver is not like the other CGC worksites. It operates 24 hours a day, 7 days a week, 361 days a year, according to Mr. Mann and contrary to Mr. Gerelus’s testimony. The PIs employed there work shifts. They are not excluded from the operation of article 27. The language allows them to be paid weekend premiums for their weekend overtime shifts. They should be so remunerated retroactively to the date of filing of the grievance as the case may be for each grievor.

B. For the employer

[27]  The employer’s decision not to pay weekend premiums to the grievors did not contravene clause 27.02; nor is it estopped from denying payments to the grievors under that clause.

[28]  Mr. Mann testified that the employer scheduled the PIs’ shifts at the Port of Vancouver to match its operations. Before 2003, the shift rotations were six days on and three days off. In 2003, at that port, the CGC reverted to a five-day operation with a five-days-on, two-days-off rotation. In 2011-2012, while other departments were going through the Deficit Reduction Action Plan, the CGC underwent changes to the Canada Grain Act (R.S.C., 1985, c. G-10), which resulted in it considering changes and cost-cutting measures to its operations. Inconsistencies were discovered across Canada with respect to paying weekend premiums to PIs; they were being paid in Vancouver and Quebec, Thunder Bay was considering implementing them, and other CGC locations did not pay them.

[29]  In 2014, Mr. Gerelus ended to the payment in Vancouver based on a Treasury Board interpretation he received from Mr. Ashton that PIs did not work scheduled shifts on weekends.

[30]  The Federal Public Sector Labour Relations and Employment Board (“the Board”) may not modify or alter a collective agreement via a decision (see Chafe and s. 229 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2)). The adjudicator must determine the parties’ true intent by examining the ordinary meaning of the words used in the collective agreement (see Chafe and Communications, Energy and Paperworkers Union of Canada v. Irving Pulp & Paper Ltd., 2002 NBCA 30). The adjudicator must also take into account the entire agreement (see Beese v. Treasury Board (Canadian Grain Commission), 2012 PSLRB 99).

[31]  The employer accepted that the grievors are shift workers covered by Appendix M and that clause 25.05 of Appendix M applies to them. However, according to the employer, they are entitled only to payment under clause 27.02 for overtime hours if those hours are contiguous to and follow immediately after a shift that forms part of their regular 37.5 hours per week and that are worked on a weekend. According to Létourneau v. Canada (Customs and Revenue Agency), 2003 PSSRB 81, overtime hours must be worked immediately following regularly scheduled shifts. Consequently, to qualify for the additional shift premiums, the grievors must work an extra shift immediately following their regular shift.

[32]  All the words in the collective agreement are intended to have meaning (see Brown and Beatty, Canadian Labour Arbitration, 5th edition, at 4:2100; and Communications, Energy and Paperworkers Union of Canada, at para. 15).

[33]  According to the grievors, the weekend hours follow the day, evening, and night rotation, but according to Mr. Mann’s evidence, the overtime hours fluctuate based on service requests received on Thursdays. Weekend schedules are prepared every Thursday based on requests received from clients. If there are no requests, there are no hours to work the coming weekend. There are no guarantees that services will be required on a weekend.

[34]  It is important to note that just because payments had been paid locally in Vancouver does not mean that it was a representation by the Treasury Board that that was a proper application of the collective agreement. The Treasury Board is the party to the collective agreement, not the CGC. Nothing that local management in Vancouver did was intended to be a representation by the Treasury Board that the grievors were entitled to payments under clause 27.02 (see Chafe and Gardiner).

[35]  Extrinsic evidence need not be considered in this case. The language before the Board is clear, specific, and unequivocal. In the absence of a patent or latent ambiguity, extrinsic evidence should not be considered (see Schlegel Villages v. Service Employees International Union, Local 1 Canada, (2015), 259 L.A.C. (4^th) 225).

[36]  The Overtime Guidelines (Exhibit 2, tab 19) cannot be used to establish the parties’ intention. The Treasury Board is not a party to it. The employer recognized that “shift” is a word that everyone in the workplace commonly uses to describe a length of time, but that is not what the parties intended when they negotiated the collective agreement. Why is there no definition of “shift”? There is no need for it. The hours of work are set out in Appendix M, where it refers to normal hours of work and shifts; therefore, shifts are the normal hours of work.

IV. Reasons

[37]  The parties disagree over whether PIs who work overtime and are on a variable‑shift rotation are entitled to be paid a weekend premium for overtime shifts worked on a weekend. The employer’s position is that hours worked on a weekend do not constitute shifts. Furthermore, to draw a shift premium under clause 27.02, overtime must immediately follow a regularly scheduled shift. For their part, the grievors argued that overtime scheduled on weekends constitutes shifts for which they are entitled to payment under clause 27.02.

[38]  As the adjudicator in Denboer said at paragraph 53, “It is trite law, as argued by the employer and embodied in Wamboldt [Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55], that a benefit involving a monetary cost to the employer must be clearly and expressly granted under the collective agreement.” Also trite law is that when interpreting a collective agreement, common sense must be used, and absurdity must be avoided. This is a case in which common sense must be brought to bear.

[39]  The CGC is one of many employers that the Treasury Board represents at the bargaining table. Collective agreements that it negotiates are intended to be applied to numerous work sites and to meet their operational realities, not just the white collar operations of the National Capital Region from which Mr. Ashton sought an interpretation. The realities of the operations in this case are that the workplace operates 361 days a year, 24 hours a day.

[40]  Try as he might have to deny this, Mr. Gerelus was not credible. I have no doubt that he either approved the payment in Quebec, which he could not remember, or at the very least authorized someone in his direct chain of command to approve it. Now, he is faced with reversing that decision. The rules that apply to operations throughout the Western Region, which do not function at the same operational pace as the Port of Vancouver, are different from those that apply to the Port of Vancouver, even though the same collective agreement applies. They have to be to meet the operational realities of each location. In my opinion, black-and-white statements, such as that no one at the CGC works a weekend shift, are without foundation at best and reckless at worst. They are not supported by the facts.

[41]  Contrary to what the employer’s counsel argued, local management in Vancouver properly applied the collective agreement, in my opinion. The parties’ intention when the agreement was negotiated was that it would be applied at the local level to the operational situation existing at that location. Local management did not enter into a side agreement with the union that violated the collective agreement or attempt to create some benefit for the PIs outside the collective agreement and thus try to create an obligation on the Treasury Board. The only obligation created was for the Treasury Board to meet its obligations to properly apply the collective agreement to the operational realities of the CGC’s workplace in the Port of Vancouver.

[42]  As to the employer’s assertion that the shifts are the normal work hours, it is important to also note the juxtaposition of the use of words when interpreting collective agreements, not just the words used. In this collective agreement, the first use of “shift” in Appendix M is found in clause 25.03, which has to do with exchanging shifts or in other words exchanging hours of work. There is no definition of “shift”. Surely, if it meant an employee’s normal working hours, it would have been given a position of far more prominence in the collective agreement.

[43]  Clear from the testimony of all the witnesses and from the plain meaning of the collective agreement language is that the grievors’ hours of work are based on the hours of operation at the employer’s facility and that they may be broken up in such a fashion as to average 37.5 hours in a 5-day period over 28 days. The word “shift” also has a colloquial meaning that plays an integral part in the operations at this worksite, as is clear from the Overtime Guidelines (Exhibit 2, tab 19). In that document, overtime shifts are identified as specific lengths of time, for example, day shift, evening shift, and graveyard shift, which are identical to the periods used to schedule work during normal working hours.

[44]  Nowhere does clause 27.02 refer to regular hours of work or regular shifts. Clause 27.01 refers to working shifts to receive a shift premium. Clause 27.02 uses the same language but goes further, to include overtime. As counsel for the employer argued, it does not state that overtime must be contiguous to a regularly scheduled shift. In fact, “overtime” is defined in article 2 as authorized work in excess of normal scheduled daily hours or an average of 37.5 hours of work per week. It makes no mention of when it is to be worked.

[45]  According to Chafe, “shifts” refers to a workplace situation in which the work cycle requires splitting the hours of work into shifts to complete the cycle. That is so in this case. From the evidence, there is no doubt that overtime is part of the Port of Vancouver’s regular hours of operation. According to Mr. Mann, his employees work 361 days a year. Also according to him, the weekend work hours which are assigned to members of the bargaining group, either to volunteers or employees directed by management, are distributed on the same rotation and on the same schedule as is used from Monday to Friday. Based on everything before me, I can conclude only that that is the regular weekend schedule.

[46]  The weekend hours of work are shifts for the purposes of clause 27.02. Clearly, if it walks like a duck and talks like a duck, it’s a duck, and not even the Herculean efforts demonstrated by the employer’s counsel to make it into a goose can do so any more than painting black stripes on a white horse makes it a zebra. The grievors are entitled to payment under clause 27.02 overtime shifts that they work on weekends, as set out in their grievance.

[47]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

 

V. Order

[48]  The grievances are allowed. The grievors shall be paid weekend premiums under clause 27.02 for all shifts they worked for which that clause would have applied from November 13, 2013, to the date of this decision.

[49]  I will retain jurisdiction to deal with any matters that arise related to the implementation of this order for a period of 90 days.

July 23, 2019.

Margaret T. A. Shannon,

a panel of the Federal Public Sector Labour Relations and Employment Board