Date: 20051014
Dockets: A-384-04
A-386-04
Citation: 2005 FCA 331
CORAM: DESJARDINS J.A.
BETWEEN:
A-384-04
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA
(UCCO-SACC-CSN)
Applicant
and
TREASURY BOARD
(Solicitor General of Canada - Correctional Service)
Respondent
BETWEEN:
A-386-04
TREASURY BOARD
(Solicitor General of Canada - Correctional Service)
Applicant
and
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA
(UCCO-SACC-CSN)
Respondent
Hearing held at Montréal, Quebec, on May 4, 2005.
Judgment delivered at Ottawa, Ontario, on October 14, 2005.
REASONS FOR JUDGMENT OF THE COURT: PELLETIER J.A.
CONCURRED IN BY: DÉCARY J.A.
DESJARDINS J.A.
Date: 20051014
Dockets: A-384-04
A-386-04
Citation: 2005 FCA 331
CORAM: DESJARDINS J.A.
BETWEEN:
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA
(UCCO-SACC-CSN)
Applicant
and
TREASURY BOARD
(Solicitor General of Canada - Correctional Service)
Respondent
BETWEEN:
A-386-04
TREASURY BOARD
(Solicitor General of Canada - Correctional Service)
Applicant
and
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA
(UCCO-SACC-CSN)
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
[1] We must decide if Treasury Board (the Board) is subject to a finding of fault for interfering in the affairs of an employee organization, contrary to the prohibitions contained in section 8 of the Public Service Labour Relations Act, R.S.C. 1985, c. P-35 (the Act).
[2] The issue arises in the context of a complaint alleging that the Board interfered in the affairs of the applicant union, the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - UCCO-SACC-CSN (the Union), by perpetrating certain acts in the course of painstaking negotiations for the renewal of the collective agreement. A board member of the Public Service Labour Relations Board (the PSLRB) decided the complaint, holding that the Board had indeed interfered in the Union’s affairs in only one of the incidents alleged by the Union, without addressing the preliminary objection raised by the Board to the effect that the complaint was deficient because it named the Board as respondent, rather than individuals. The PSLRB member had, moreover, failed to issue an order prohibiting the Board to stop its unfair activities.
[3] The parties, defeated on one or more points that was important to them, both filed an application for judicial review of the PSLRB member’s decision. I find that the Board was correct and that the Board cannot be found at fault for violating section 8 of the Act. Accordingly, its application for judicial review should be allowed and the Union’s application dismissed.
FACTS AND PROCEEDINGS
[4] A brief summary of the facts is sufficient to illustrate the issue.
[5] In 2001, the Union replaced another employee organization as the bargaining agent for the employees of the Correctional Service group. It has been since then that it has been trying – unsuccessfully – to negotiate the renewal of the collective agreement. Within the Union, there is a group of dissenting members militating in favour of a rival organization, the National Association of Federal Corrections Officers (NAFCO), seeking to displace the Union.
[6] The improvement of the pension plan was one of the Union’s primary demands. The Board, however, claimed that the Act excluded that subject from collective bargaining. The Union consulted experts in the field who confirmed that its demands were negotiable. This notice was sent to the members in a special bulletin entitled “No agreement without a real pension plan”.
[7] A member of the dissenting group, David Lee, repeatedly contacted Ann Gravelle, Director, Program Management and Regulatory Policies, to ask her if it would be possible to negotiate a decrease in the retirement eligibility age. She told him that the Act prohibited negotiating changes to the pensions. Mr. Lee forwarded Ms. Gravelle’s e-mail to a large number of corrections officers, suggesting that the Union’s position on the negotiation of changes to the pension plan was dishonest.
[8] The Union contends that communicating directly with its members on an issue that is in dispute at the negotiating table amounts to interference in the Union’s affairs.
[9] The Union also takes issue with the discriminatory policy regarding the use of the e-mail system. Mr. Lee sent its information to the correctional officers at their e-mail addresses at work, and Correctional Service Canada (CSC) did not object to it. However, the CSC which, for the purposes of this application, is acting on behalf of the Board, stated that it was an “inappropriate use of the corporate e-mail system” for certain Union activists to program their e-mail to auto reply to all transmissions: “Until such time as the employer negotiates in good faith, I am unable to review or reply to your correspondence”. The Union considers that this difference in treatment encourages dissenting members and, on that basis, interferes with the Union’s affairs.
[10] The Union’s foremost allegation is the one relating to the emergency teams. Frustrated by the lack of progress in the negotiations, the Union tried to use pressure tactics against the CSC. It targeted the emergency teams. The purpose and the composition of these teams are described as follows in the board member’s decision:
[23] The union's other complaint against the employer relates to the emergency or specialized teams. The union explained that, for several years, the employer has agreed with the union that the best way to provide certain specialized services was to establish employee teams (notably, (a) intervention with recalcitrant inmates or group of inmates, (b) response in the event of fire, and (c) training in the use of firearms and other defence weapons).
[24] Employees in each institution volunteer to be part of a specialized team. These employees are called upon when assistance is needed to remove a recalcitrant inmate from a cell. If the employees are already at work, reassignments are done to transfer the employees to a designated location and they are replaced in their original assignments. If there are not enough specialized employees at work to form the response team, off‑duty employees are called in.
. . .
[27] In practice, employees volunteer for these emergency teams for a certain number of years. Over time, some resign and are replaced by other volunteer employees.
[11] In order to pressure the CSC and the Board, the Union suggested to its members that they stop volunteering for the emergency teams. More than 90% of the emergency team members resigned from their teams. However, the incidents that these teams had to respond to continued to occur and the CSC had to respond to them. Aware that former team members received special training, the CSC exercised its managerial rights and, when an incident occurred, ordered former team members to come to carry out the necessary services. To counter the employees’ refusal to render the services that they once rendered voluntarily, the CSC implemented a policy whereby the employee’s first refusal to render the service in question would result in a warning. The request would be repeated a few minutes later. A employee was liable to a fine after a second refusal. The CSC would repeat its request up to five times, and the employee could be fined more with each refusal, until the fifth refusal, which could result in dismissal.
[12] Faced with these threats, the employees consulted their Union, which advised them to obey the CSC’s order rather than be penalized, but to file a grievance afterwards. Accordingly, hundreds of grievances were filed.
[13] On June 20, 2003, the Union filed a complaint with the PSLRB alleging that the Board, through threats and intimidation, was trying to prevent employees from participating in the lawful activities of their union, that it was negotiating in bad faith and that it was interfering with the Union’s affairs. On July 18, the Union filed a second complaint against the Board restating the allegations contained in the first complaint.
[14] Before the complaint was even heard, the Board informed the PSLRB that the complaint was deficient (applicant’s record, page 374). The Board persisted at the beginning of the hearing, on August 25, 2003, submitting that the Union’s complaint was deficient because it named the Board as respondent. The Union accused the Board of violations found under section 8 of the Act, according to which certain acts are prohibited by “[any] person who occupies a managerial or confidential position”. According to the Board, this was such that only individuals could violate that section. Given that the Board is not an individual, it could not be the subject of a complaint pursuant to section 8.
[15] The next day, when the hearing resumed, the Union filed a list of names of persons who, in its opinion, had committed the acts alleged against the Board in the complaints, but without admitting that they had to be named as respondents:
MAURICE LAPLANTE:
[TRANSLATION]
We have a list of those who appear to us to be those who violated the law. So, if you determine that we should add those people as respondents and that the order, if necessary, to be delivered later on, contemplates them, listen, what I say is that in statutory terms, Treasury Board is indeed identified as the employer of correctional services, that it is Treasury Board that is in the Public Service Labour Relations Act. The employer identified by statute for correctional services, it is Treasury Board and, for us, the request made to you is the equivalent of a motion for particulars and not an application to add respondents. Do you understand?
[Appeal record, vol. 3, pp. 450-451.]
[16] Ms. Champagne, counsel for the Board, does not agree that her objection is limited to a motion for particulars:
JENNIFER CHAMPAGNE:
[TRANSLATION]
I would like to point out, before going any further, Mr. Tessier, for the purposes of the record, that this was not in any way a motion for particulars by me, as my colleague would suggest, and that it is very common for that kind of objection to be the subject of a debate like this before the Board, since normally it goes without saying.
I understand that if the complaint is made against Treasury Board regarding the allegation of negotiating in bad faith, I have no problem with that, fine. As for sections 8 and 9, what I am telling you is that Treasury Board cannot be named as respondent since it is not a person within the meaning of the law.
[Appeal record, vol. 3, pp. 459-460.]
[17] The board member did not decide the issue during this exchange. He set aside the issue to be debated later on, but he did not return to it.
[18] The board member’s decision does not support the Union, except on one point. The board member disregards the allegation of interference with regard to the communication with the Union members, determining that the employee in question was entitled to communicate with the dissenting member, given that he was a pension plan client. The board member did not accept the complaint regarding the use of e-mail because he found no evidence of unequal treatment between the dissenting members and the Union activists. He notes, furthermore, that the dissenting member communicated with his peers using his personal e-mail, and not that of the CSC.
[19] However, the board member agreed in part with the merits of the complaint with respect to the emergency teams. Relying on an earlier decision by the PSLRB (Public Service Alliance of Canada and Carey Barnowski and the Canada Customs and Revenue Agency, Rob Wright and Reid Corrigal, 2001 PSSRB 105), the board member determined that the resignation of the members of the emergency team was part of a Union strategy. Yet, in accordance with his appreciation of the circumstances under which the CSC obliged the resigning members to offer their services for interventions with non-compliant inmates and for fire duty, the board member determined that the policy adopted by the CSC was justified on the grounds of safety and emergency. The absence of these elements in the case of the members of the training teams is such that the application of the policy of sanctions against former trainers had the effect of contradicting the Union’s order of the day, as well the Union’s advice. The board member considered that, accordingly, there was interference in union activities with respect to the former trainers.
[20] Despite that finding, the board member did not issue a permanent order “given that my decision refers to the circumstances and to the way in which the actions were taken in May and June 2003” (applicant’s record, p. 31).
ANALYSIS
[21] It is now worthwhile to refer to the text of the Act in question in order to more specifically identify the issue:
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2. "employer" means Her Majesty in right of Canada as represented by,
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2. « employeur » Sa Majesté du chef du Canada représentée :
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(a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and
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a) par le Conseil du Trésor, dans le cas d’un secteur de l’administration publique fédérale spécifié à la partie I de l’annexe I;
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(b) in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned;
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b) par l’employeur distinct en cause, dans le cas d’un secteur de l’administration publique fédérale spécifié à la partie II de l’annexe I.
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...
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6. Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which the employee is a member.
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6. Un fonctionnaire peut adhérer à une organisation syndicale et participer à l’activité légitime de celle-ci.
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...
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...
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8. (1) No person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.
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8. (1) Il est interdit à quiconque occupant un poste de direction ou de confiance, qu’il agisse ou non pour le compte de l’employeur, de participer à la formation ou à l’administration d’une organisation syndicale, ou d’intervenir dans la représentation des fonctionnaires par une telle organisation ou dans les affaires en général de celle-ci.
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(2) Subject to subsection (3), no person shall
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(2) Sous réserve du paragraphe (3), il est interdit :
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(c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or any other penalty or by any other means to compel an employee
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c) de chercher, notamment par intimidation, par menace de destitution ou par l’imposition de sanctions pécuniaires ou autres, à obliger un fonctionnaire :
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...
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...
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(i) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be a member of an employee organization, or
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(i) à adhérer — ou s’abstenir ou cesser d’adhérer —, ou encore, sauf disposition contraire dans une convention collective, à continuer d’adhérer à une organisation syndicale,
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(ii) to refrain from exercising any other right under this Act.
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(ii) à s’abstenir d’exercer tout autre droit que lui accorde la présente loi.
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[22] On reading section 8, certain elements emerge. The prohibition of interference does not address the employer as such. The Act defines the employer and specifies that it is Her Majesty in Right of Canada as represented, in this case, by the Board. Parliament could have prohibited Her Majesty’s representative from resorting to certain unfair practices. It did not do so.
[23] Parliament chose to address “[any] person who occupies a managerial or confidential position”. The issue of who is contemplated by this provision raises two subsidiary issues. Can the Board occupy a managerial or confidential position? Do others occupy these positions?
[24] When the statute governing labour relations in the public service refers to a managerial or confidential position, it ought not to be in the abstract sense, but a position in the ordinary sense of the word in the world of labour relations. The Board is described in section 5 of the Financial Administration Act, R.S.C. 1985, c. F-11, as a committee of the Queen’s Privy Council for Canada consisting of the President and four other members selected from the Privy Council. It is difficult to imagine how the Board could occupy a managerial or confidential position. The Board is certainly implicated in public service management, but that does not lead to the conclusion that the Board is occupying a managerial or confidential position as it is understood in the world of labour relations.
[25] That leads us to the second issue. There is no doubt that within government departments there are persons responsible for managing the department’s work, which includes human resources management. In the case before us, it is obvious that, despite the fact that the complaint contemplates the Board, the acts complained of were carried out by CSC management. A review of the list of names filed at the hearing by the Union establishes that all but three of the names are names of CSC managers. It is therefore unnecessary to find a reference to the Board in section 8 in order to give it meaning. There is a group of managers in positions likely to be qualified as managerial or confidential within the meaning of the Act.
[26] Accordingly, I determine that there can be no finding of fault against the Board for violating the prohibitions found in section 8 of the Act, only a finding of fault against individuals.
[27] There is PSLRB case law which supports this finding and illustrates its merits. The PSLRB decision in Association des économistes, sociologues et statisticien(ne)s et Canada (Conseil du Trésor) [1978] C.R.T.F.P.C. No. 6 (Association des économistes, sociologues et statisticien(ne)s et Canada (Conseil du Trésor)), provides a good explanation of the reasons leading to this finding:
[TRANSLATION]
[15] . . . The measures which are the basis for the complaint were allegedly taken by persons acting on behalf of the employer, i.e. Her Majesty the Queen in Right of Canada, represented by Treasury Board. If we do not give her the names of these persons or specific allegations regarding their acts, the employer is not able to prepare a defence. Moreover, without evidence establishing the truthfulness or falsity of those allegations, the PSLRB is clearly unable to make a decision regarding the validity of the complaint. It therefore follows that the complaint must be lodged against the persons named who, we presume, were acting on behalf of the employer . . .
The PSLRB made a similar decision in Schmidt v. Lang, [1979] C.R.T.F.P.C. No. 5 (Schmidt).
[28] We were not referred to any case law of our Court bearing on this issue. The wording of the Act itself, as well as the reasoning of the PSLRB in Association des économistes, sociologues et statisticien(ne)s and Schmidt persuade me that the Board as such cannot contravene subsection 8(1) of the Act. By identifying a physical person as respondent, particulars can be provided regarding the alleged acts. That enables the Board to verify the merits of the allegations and enables the PSLRB to decide on their truthfulness.
[29] I therefore determine that a complaint that only names the Board as respondent cannot succeed and must be dismissed. Even though the board member did not rule on that issue, his decision regarding the Board’s interference is inconsistent with my finding regarding the meaning of the Act. Assuming that the pragmatic and functional analysis would lead to the conclusion that the board member, as a member of a specialized tribunal interpreting its enabling statute, is entitled to a certain deference from the courts, the interpretation underlying the board member’s finding misconstrues the Act to the point that it is unreasonable. Our Court would therefore be justified to intervene.
[30] Intending to counter the Board’s objection, the Union filed a list of names of persons who, in its opinion, carried out the acts alleged against the Board, but the Union was determined not to amend the complaint to name them as respondents. It is not this dubious strategy that is fatal to the Union’s attempt to put its complaint in order, but rather the fact that, with the exception of the direct communications with the Union members, the evidence does not allow us to assign specific acts to their authors.
[31] This absence of evidence is such that, despite the list of names filed, the board member could not find the Board at fault because the Board is not contemplated by subsection 8(1) of the Act and he could not making a finding of fault against the persons whose names appeared on the list because there was no evidence establishing a link between the alleged acts and those persons. This applies to all of the allegations of the Union, except the allegation of direct communication between the Board and the Union members.
[32] With respect to that allegation, even though the source of the communication was known, the board member dismissed it on the merits. He determined based on the formality of the communications and the fact that the recipient of the communication was a “client” of the pension plan, that the communication in question was not interference in the Union’s affairs. That is a finding of mixed fact and law whose standard of review, that of patent unreasonableness, does not enable this Court to intervene.
[33] As for the board member’s determination regarding the absence of discriminatory treatment in the use of the e-mail, that is a finding of fact that cannot be revised unless it is patently unreasonable, which is not the case.
CONCLUSION
[34] It is therefore my opinion that the preliminary objection raised by the Board has merit and that the board member should have allowed it. That would have led him to dismiss the Union’s complaint as filed. Even in the event that the board member considered that the complaint had been amended by the list of names filed by the Union, the absence of evidence that those persons had carried out any act could only lead him to the same conclusion.
[35] The application for judicial review filed by the Board should be allowed with costs, the board member’s decision set aside, and the matter should be referred to him so that he can reconsider the Union’s complaints on the basis that there can be no finding of fault against the Board for violating section 8 of the Act and that the Union’s complaints should be dismissed. The application for judicial review filed by the Union should be dismissed but without costs.
“J.D. Denis Pelletier”
J.A.
“I concur.
Alice Desjardins J.A.”
“I agree.
Robert Décary J.A.”
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKETS: A-384-04-A-386-04
STYLES OF CAUSE: A-384-04
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA
(UCCO-SACC-CSN)
and
Treasury Board
(Solicitor General of Canada - Correctional Service)
BETWEEN:
A-386-04
TREASURY BOARD
(Solicitor General of Canada - Correctional Service)
and
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTIONNELS DU CANADA
(UCCO-SACC-CSN)
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 2, 2005
REASONS FOR JUDGMENT: PELLETIER J.A.
CONCURRED IN BY: DESJARDINS J.A.
DÉCARY J.A.
DATE OF REASONS: October 14, 2005
APPEARANCES:
Maurice Laplante
Réjeanne Choinière FOR THE APPLICANT
Karl G. Chemsi FOR THE RESPONDENT
SOLICITORS OF RECORD:
Laplante et Ass.
Montréal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT