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166-34-30115 to 30118 (2003 PSSRB 89), Guest, Heran, Chand and Birnie v. Canada Customs and Revenue Agency
Before: I. Mackenzie
Appearances: D. Seaboyer, for the Grievors; N. McGraw, for the Employer
Decision rendered: October 6, 2003
Collective agreement interpretation – Deduction of salary – Picket line – Admissibility of rebuttal evidence – Payment of interest – the grievors were chosen as representative grievors to represent over 600 grievors from both the Surrey Tax Centre (STC) and the Burnaby-Fraser Tax Services Office (BFTSO) who had grieved the employer's decision to deduct from their salary the time that they missed from work due to the events of March 23, 1999 – both worksites are separate buildings but are side by side and are together known as "the campus" – on the day in issue, the members of Table Two of the Public Service Alliance of Canada (PSAC) were on strike and, given that there were only three such members working at the campus, reinforcements from other departments came to the campus in order to picket – in anticipation of strike activity, the employer had issued memoranda to employees advising them that in the event of a strike, they were expected to report for work and detailing procedures for obtaining the employer's assistance in crossing the picket line in the event that they encountered difficulty or harassment by pickets – on the morning in question, the weather was cool and rainy and picketers were blocking the entrance to the parking lot – as the morning progressed, the picket line became more heated and in the late morning, a car driven by a client hit a picketer, the media arrived and an excluded manager was pulled to the ground from behind while escorting employees across the line – it was at this point that the decision was made to no longer escort employees across the picket line – employees who did not cross the picket line or did not come to work were not paid for the day, with the exception of BFTSO employees who were paid up until 9 a.m. given that management had told them to go get coffee and return for that time – the union introduced rebuttal evidence to which the employer objected on the following day – the adjudicator ruled in favour of the employer, stating that the introduction of this evidence violated the rule in Brown v. Dunn and was not in response to a new fact raised by the employer – the grievors argued that they feared for their safety – the grievors also contested the fact that the employees at the STC were treated differently from those at the BFTSO – they argued that they should be paid for the entire day or, at the very least, up until the time that they made a decision to leave and return home – the employer argued that employees were made aware of their obligations and were advised of their responsibility to report for work, that the message from management had been clear – according to the employer, it was the grievors' own choice not to cross the picket line as plenty of escorts were available, the picket line was not violent and the verbal abuse there was not sufficient to constitute a real threat of violence – the employer argued that the employees had not made reasonable efforts to cross the picket line and management had fulfilled its obligation to ensure clear instructions and safe crossing – the employer further argued that the difference in treatment between BFTSO and STC employees was justified because in both cases employees were paid when they followed management instructions – the adjudicator stated that in picket line situations both the employer and the employees have obligations – according to the adjudicator, the employer's obligation is to make reasonable efforts to protect the health and safety of its employees – the adjudicator found that the employer did so in this case by establishing procedures to be followed in the event of a dispute and doing so prior to the strike, designating meeting places for employees to receive orders and guaranteeing protection for those crossing the picket line – the adjudicator did note, however, that although employees were provided with escorts across the picket line for most of the morning, escorts stopped late in the morning because of concerns about employee safety – according to the adjudicator, in picket line situations, the employees' obligation is to wait for instructions from management and to demonstrate that they had cause to fear for their health and safety in crossing the picket line – the adjudicator concluded that if escorts are deemed needed by management and are stopped, employees should not be expected to cross the picket line – the adjudicator held that, depending on the area involved at the worksite, the situation on the day in question was either volatile or confused – he held that employees should receive compensation up until the time that they left for the day – the adjudicator declined to award interest as the jurisprudence was clearly to the effect that in the absence of statutory authority, there is no jurisdiction to award the payment of interest.
Grievances allowed in part.
|Cases cited:||Avey (166-18-27611); Brown v. Dunn  6 R. 67; Bailey and others (166-34-30039 to 30043); Morneau (166-2-10080,10103, 10104, 10122 and 10127); Eaton v. The Queen  F.C. 185; Dahl (166-25535).|