FPSLREB Decisions
Decision Information
The grievor was a border services officer working in Calgary, Alberta – he was also the Alberta branch president of the Customs and Immigration Union, a component of the Public Service Alliance of Canada (“the Alliance”) – the grievor filed a grievance, alleging that the employer denied him leave with pay for two travel days to attend a public interest commission (PIC) hearing and a pre-PIC meeting in Ottawa, Ontario – article 14 of the collective agreement was silent with respect to travel for Alliance business – the Board reviewed the plain and ordinary language of the collective agreement and the agreement as a whole – the Board noted that the bargaining agent and the employer expressly provided for several types of leave that could be requested and granted, given that about a third of the agreement dealt with the different types of leave – at article 14, they expressly provided for how leave should be granted and on what basis for employees engaged in Alliance business – when they wished to deal with issues involving travel and whether it would be paid, they specifically did so at article 32, in which travelling time is compensated only in the circumstances and to the extent provided in that article – a plain and ordinary interpretation of the words of the collective agreement led the Board to conclude that the parties to the agreement did not provide for the payment of leave with pay for travelling when on Alliance business – furthermore, leave with pay has a monetary cost to the employer and must be clearly and expressly granted – the collective agreement did not provide for leave with pay for travel when on Alliance business – since clause 32.03 specifically stated that travelling time was compensated for only in the circumstances and to the extent provided for in that article and did not grant travel time for Alliance business, this benefit was not clearly or expressly granted.
Grievance denied.
Decision Content
Date: 20221128
File: 566-02-12655
Citation: 2022 FPSLREB 98
Labour Relations Act
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Between
Steve Pellerin-Fowlie
Grievor
and
(Canada Border Services Agency)
Employer
Indexed as
Pellerin-Fowlie v. Treasury Board (Canada Border Services Agency)
In the matter of an individual grievance referred to adjudication
Before: John G. Jaworski, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Pamela Sihota, Public Service Alliance of Canada
For the Employer: Larissa Volinets Schieven, counsel
Decided on the basis of written submissions,
filed July 26 and August 22, 2022.
REASONS FOR DECISION
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I.
Individual grievance referred to adjudication
[1] Steve Pellerin-Fowlie (“the grievor”) was, at all times relevant to the facts in this decision, employed by the Treasury Board (TB or “the employer”) and working for the Canada Border Services Agency (CBSA) as a border services officer (BSO) in the general technical group, classified at the FB-03 group and level. At the relevant time, his position was in Calgary, Alberta. In addition to his position as a BSO, he was also the Alberta branch president for the Customs and Immigration Union (CIU).
[2] The CIU is a component union that is a part of the Public Service Alliance of Canada (“the Alliance”).
[3] At the relevant time, his terms and conditions of employment were partially governed by a collective agreement between the TB and the Alliance for the Border Services Group, all employees, which was signed on January 29, 2009, and expired on June 20, 2011 (“the collective agreement”).
[4] On December 21, 2012, the grievor filed a grievance that alleged that the employer denied him leave with pay for December 6 and 11, 2012, as travel days for him to attend contract mediation on December 7, 2012 (incorrectly identified as December 8, 2012, on the grievance form), and a public interest commission (PIC) hearing on December 10, 2012. As relief, the grievor requested that the Alliance be reimbursed directly for the two days (December 6 and 11, 2012) and that he be made whole.
[5] The employer denied the grievance at the final level of the grievance process, and the grievor referred it to adjudication with the former Public Service Labour Relations Board (PSLRB) under s. 209(1)(a) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the PSLRA”).
[6] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; “the PSLREBA”) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the PSLREB”) to replace the former PSLRB as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to s. 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the PSLRA before November 1, 2014, is to be taken up and continue under and in conformity with the PSLRA as it is amended by ss. 365 to 470 of the Economic Action Plan 2013 Act, No. 2.
[7] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (“the Act”).
II.
Summary of the evidence
[8] The parties submitted an agreed statement of facts and an agreed book of documents.
[9] At the relevant time, the collective agreement had expired, and the Alliance and the employer were proceeding to the PIC hearing process. The grievor was a member of the Alliance’s bargaining team.
[10] On October 26, 2012, by email, at 14:59 local time, the grievor advised Celine Bourgoin who was the acting chief of commercial operations for the Central Alberta District of the CBSA that the mediation that was scheduled for November 23, 2012, was cancelled and that the leave that he had previously requested should be cancelled and transferred to December 6, 7, 10, and 11, 2012. He further said that they were both covered by article 14.04 of the collective agreement.
[11] On November 27, 2012, Ms. Bourgoin advised the grievor that leave with pay was granted for Friday, December 7, and Monday, December 10, 2012, under clause 14.04 of the collective agreement and that leave without pay under clause 14.10 was granted for the travel days of Thursday, December 6, and Tuesday, December 11, 2012.
[12] In an email dated December 4, 2012, at 14:49, Scott Hazlitt, a senior labour relations advisor, forwarded an email from CBSA headquarters to Kevin Hewson and Mike Shoobert on the topic of leave for the PIC hearing scheduled in Ottawa, Ontario, on December 10, 2012. Mr. Hewson’s position and relevance to the grievance were not made known to me. Mr. Shoobert was identified as the interim director for the Calgary District of the CBSA. The email stated as follows:
...
The following is further to recent discussions with Regional Human Resources Directors on the subject of Leave With or Without Pay for Union Business (Article 14, Border Services Agreement) and is intended to clarify what type of leave may be granted to bargaining team members for the purpose of participating in the upcoming Public Interest Commission (PIC) process in Ottawa.
As you know, a PIC mediation hearing for the FB group is scheduled on December 8th and 9th, 2012. If required a PIC hearing is also scheduled on December 10, 2012.
Leave for Union Business to participate in the PIC process is to be granted, where operational requirements permit, to bargaining team members only.
Leave with pay, as per clause 14.04, may be granted for the period of December 8-10, 2012.
We have received questions concerning leave requests where travel is required to attend the PIC. Leave without pay, as per clause 14.09, may be granted for the purposes of travelling to and from Ottawa.
Should members request leave to attend preparatory contract negotiations meetings (typically the day before, for example), leave without pay under clause 14.10 may be granted.
...
[13] By email on December 5, 2012, at 15:13, Ms. Bourgoin advised the grievor that his leave with and without pay that had been approved was being amended by changing December 7, 2012, from leave with pay to leave without pay, thus granting the grievor three days of leave without pay, December 6, 7 and 11, and one day of leave with pay, December 10, 2012. By return email that same day at 16:14, the grievor reiterated his request for leave with pay for December 6, 10, and 11, 2012, and leave without pay for December 7, 2012.
[14] The documents variously identified what was proceeding on December 7, 2012, as a mediation related to the PIC hearing, a contract negotiation, and an Alliance prep meeting for the PIC hearing. As nothing turns on what exactly it was, from here on, I will simply refer to it as the “pre-PIC” meeting.
[15] By email dated December 7, 2012, at 12:48, from Ms. Bourgoin, Mr. Shoobert advised the grievor that the leave that Ms. Bourgoin had approved on December 5, 2012, which was three days of leave without pay and one day of leave with pay, would be granted.
[16] The collective agreement contains 7 “Parts”, comprising 64 “Articles” and 9 “Appendices”. Not counting the appendices, it numbers 97 pages, of which 2 are the signing pages. One part, Part IV, is entitled “Leave Provisions”, and there are 20 separate articles, covering 30 pages, setting out the different types of leave contemplated, several of which are further broken down within each provision. In addition to these leave provisions, a separate article is designated for leave, with or without pay, for Alliance business, article 14, which consists of 3 pages and states as follows:
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[17] Part III of the collective agreement is entitled “Working Conditions”, and article 32 is entitled “Travelling Time”, consists of three pages, and states the following:
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[18] The collective agreement also refers to travel in article 25, “Hours of Work”, at clause 25.27, and states the following:
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[19] The Alliance reimbursed the grievor for his travel days. The employer had no knowledge of this reimbursement.
III.
Summary of the arguments
A.
For the grievor
[20] The grievor submitted that article 14 of the collective agreement unambiguously demonstrates the parties’ intention to grant either leave with pay or leave without pay in order to allow members of the bargaining agent to attend and participate in certain union matters. While the grievor also attended the preparatory meeting with the bargaining agent on December 7, 2012, for which he was granted leave without pay under article 14.10, he was still required to undertake two days of travel to and from the PIC which means that article 14.04 should be applied to include the grievor’s two days of travel. The grievor submitted that by denying leave with pay for the time to travel to the PIC, the employer is adding words to the original provision which makes no distinction between appearing before the PIC and travelling to appear before it.
[21] In examining the collective agreement in its entirety, article 32 of the collective agreement deals with travelling time and with how and when employees will be paid when travelling for their employment. The language found under article 32 provides limitations and parameters for when an employee will be paid or compensated for work related travel. No such limitations or parameters are found under article 14 which deals with the granting of leave with pay and without pay for Alliance business. Therefore, in the absence of any express provision stating that travel was not included, the grievor submitted that he should have been granted leave with pay under article 14.04 of the collective agreement for two days of travel.
[22] The grievor requested that the Board issue a declaration that the employer breached the collective agreement and that he be made whole and receive any other remedy that the Board deems appropriate.
[23] The grievor referred me to Canadian Labour Arbitration, 5th Edition, Donald J. M. Brown and David M. Beatty, Chapter 4, “The Collective Agreement”, paragraph 4:2100, “The Object of Construction: Intention of the Parties”; Professional Institute of the Public Service of Canada v. Treasury Board, 2019 FPSLREB 108 (“PIPSC v. TB”); and Fields v. Treasury Board (Department of Transport), 2016 PSLREB 78.
B.
For the employer
[24] The employer submitted that when a benefit has a monetary cost to the employer, it must be clearly and expressly granted under the collective agreement. Thus, it is incumbent on the grievor to prove clearly and unequivocally that the requested monetary benefit was the intended result.
[25] Article 14 is a complete code with respect to the leaves available for union business, both paid and unpaid. It does not provide for leave with pay to travel to and from PIC proceedings. There is clearly a distinction between “representing” the bargaining agent as set out in article 14.04 and travelling for that purpose, on which the collective agreement is silent. Silence on an issue neither raises an ambiguity nor gives rise to a monetary entitlement. Rather, it indicates that the parties did not address the issue. Given the collective agreement’s silence on the issue of leave to travel to and from PIC hearings and since the employer’s provision of leave without pay for such travel is not inconsistent with the collective agreement’s express language, the employer can exercise its residual management rights to determine the type of leave, if any, available for such travel. To read in such a monetary entitlement in the face of silence on the issue would amount to a revision of the collective agreement, in contravention of s. 229 of the FPSLRA. While the bargaining agent and the employer bargained for various paid and unpaid leaves to allow employees to attend to business of the bargaining agent, they clearly did not bargain for paid leave to travel to attend to such business.
[26] As the grievor points out, there are no limits or parameters on travel time in article 14, in contrast to article 32, which governs travel required by the employer on government business. This is because no travel time is provided for in article 14, such that no such limits or parameters are required. Clearly, the bargaining agent and the employer negotiated that employees be paid while travelling on government business at the Employer’s behest. They did not, however, bargain for paid time off to travel for business on behalf of the bargaining agent.
[27] The grievor did not meet its burden of showing that article 14.04 provides for paid leave to travel to and from a PIC proceeding.
[28] The employer requested that the Board dismiss the grievance.
[29] In addition to the Act, the employer also referred me to PIPSC v. TB and to Cruceru v. Treasury Board (Department of Justice), 2021 FPSLREB 30, Nowlan v. Canada (Attorney General), 2022 FCA 83, Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112, Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55 (“Wamboldt v. CRA”), Denboer v. Treasury Board (Correctional Service of Canada), 2016 PSLREB 58, Bédard v. Treasury Board (Canadian Grain Commission), 2019 FPSLREB 76, Arsenault v. Parks Canada Agency, 2008 PSLRB 17, Forbes v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 110, International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board (Department of National Defence), 2020 FPSLREB 117 (application for judicial review dismissed in 2022 FCA 69), Association of Justice Counsel v. Treasury Board, 2016 PSLREB 48 (“AJC v. Treasury Board”), King v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 125 (application for judicial review dismissed in 2012 FC 488, appeal dismissed in 2013 FCA 131, and leave to appeal to the Supreme Court of Canada dismissed, 2014 CanLII 3503), Forster v. Canada Revenue Agency, 2006 PSLRB 72, Brain v. Canada Revenue Agency, 2006 PSLRB 74, and Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 53.
C.
The grievor’s reply
[30] The grievor did not provide a reply to the employer’s submissions.
IV.
Reasons
[31] As set out in Arsenault, in grievances such as this one, where it is alleged that there is a breach of the collective agreement, the burden of proof is on the grievor, and the bargaining agent that is supporting him or her, and they must prove that the breach that has been alleged, on a balance of probabilities, has taken place.
[32] This grievance deals with the very narrow issue of whether the grievor was entitled to leave with pay for two days of leave when he travelled to attend a one-day PIC hearing and a pre-PIC meeting in Ottawa. The grievor lived and worked in Calgary, thus necessitating the travel on December 6, 2012, the day before the pre-PIC meeting, and on December 11, the day after the PIC hearing. The employer granted leave for the travel, albeit without pay.
[33] However, the days at issue were not a day of a PIC hearing or pre-PIC meeting but merely travel days. Article 14 is silent with respect to travel for Alliance business. However, the jurisprudence in this area is well established that adjudicators, arbitrators, and tribunals are to look not only at the plain and ordinary language of the collective agreement but also the agreement as a whole.
[34] The law in this area is settled. It is summarized as follows in Canadian Labour Arbitration, at paragraph 4:2100: “... in determining the intention of the parties [to a collective agreement], the cardinal presumption is that the parties [to a collective agreement] are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions.”
[35] At paragraph 84 of Cruceru, the Board stated as follows:
[84] As outlined in authoritative sources such as Brown and Beatty, at paragraph 4:2100, and as recognized throughout the Board’s case law, canons of interpretation such as the following guide this analysis: (1) the parties are assumed to have meant what they said, (2) the meaning and intent of the collective agreement is to be sought in its express provisions, (3) the words of a collective agreement must be given their grammatical and ordinary sense, (4) they must read in their entire context, in harmony with the scheme of the collective agreement, and (5) when the same words reappear, they are to be given the same interpretation.
[36] At paragraph 109 of AJC v. Treasury Board, the Board stated as follows:
109 A number of the rules of construction in my view are of assistance in determining the parties’ intentions in interpreting the language used in this collective agreement. Firstly, words of collective agreement are to be given their ordinary and plain meaning. Secondly, a collective agreement is to be construed as a whole, and identical or similar terms used in different parts of the collective agreement should be given the same or similar meanings. Thirdly, the expressio unius alterius rule provides that the express mention of one thing implies the exclusion of another; see Collective Agreement Arbitration in Canada, at 27-32.
[37] When interpreting the collective agreement, s. 229 of the Act provides that an adjudicator’s or the Board’s decision may not have the effect of requiring the amendment of a collective agreement or an arbitral award.
[38] At paragraph 67 of Forbes, the Board stated as follows:
[67] The Board should be extremely cautious to not add benefits to agreements that the parties to those agreements have not bargained for. Parliament enacted such a restraint upon creative advocacy by parties in s. 229 of the FPSLRA [the Act], which prohibits adjudicators from rendering decisions that would alter the terms of a collective agreement.
[39] In negotiating the collective agreement, the Alliance and the employer expressly provided for several types of leave that can be requested and granted, and they are contained in 21 separate articles encompassing over 33 pages, which is about 1/3 of the entire collective agreement, not including the appendices. In short, the Alliance and the employer clearly considered leave provisions in depth, given that about a third of the agreement deals with the different types and options for leave.
[40] Indeed, in negotiating the collective agreement, the Alliance and the employer expressly provided in article 14, which is entitled “Leave With or Without Pay for Alliance Business”, for how leave shall be granted and on what basis for employees involved in certain activities. Indeed, there are listed 13 different situations involving leave for an employee engaged in Alliance business. These are further subdivided, depending on the role the employee plays in the situation.
[41] The Alliance and the employer, when they wished to deal with issues involving travel and whether it would be paid, specifically did so. Article 32 of the collective agreement is entitled “Travelling Time”. Clause 32.03 specifically states that “... travelling time is compensated for only in the circumstances and to the extent provided for in this Article.” This is clear and unambiguous.
[42] A plain and ordinary interpretation of the words in the collective agreement leads me to the conclusion that the parties to the agreement have not provided for the payment of leave with pay for travelling when on Alliance business, and as such, the grievor has not established on a balance of probabilities that the collective agreement grants this benefit. As such, he has not established that the employer is in breach of the collective agreement.
[43] In addition, as set out in Wamboldt v. CRA, the Board has stated that “... a benefit that has a monetary cost to the employer must be clearly and expressly granted under the collective agreement ...”. As leave with pay has a monetary cost to the employer, it must be clearly and expressly granted. As nowhere does the collective agreement speak of leave with pay for travel on Alliance business, and since clause 32.03 specifically states that “... travelling time is compensated for only in the circumstances and to the extent provided for in this Article” and does not grant travel time for Alliance business, this benefit is not clearly or expressly granted, and the grievance must fail on this basis as well.
[44] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[45] The grievance is denied.
November 28, 2022.
John G. Jaworski,
a panel of the Federal Public Sector Labour Relations and Employment Board